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[2011] ZALCJHB 88
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Seatlolo and Other v Entertainment Logistics Services (A Division of Gallo Africa Ltd) (JS 1971/10) [2011] ZALCJHB 88 (21 October 2011)
.
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
Case no: JS 1971/10
Reportable
In the matter between:
HORATIOUS SEATLOLO
….......................................................................
First
Applicant
INDIVIDUAL APPLICANTS
LISTED IN SCHEDULE ‘A’
…..............................................
Second
to Further Applicants
and
ENTERTAINMENT LOGISTICS
SERVICE
(A DIVISION OF GALLO
AFRICA LTD)
….....................................................
Respondent
JUDGMENT
BHOOLA J:
Introduction
[1]
The
applicants seek leave to appeal against the whole of the judgment and
order dated 5 May 2011 in which the court
a
quo
dismissed
their application for condonation of the late referral of their
dispute with the respondent.
Grounds
of appeal
[2]
The court
a quo
erred in failing to consider all factors
relevant to determining good cause and in finding that a
bona fide
defence and good prospects of success were not relevant. The court
erred in finding that, in the absence of a reasonable and acceptable
explanation for the delay, the prospects of success were immaterial.
In so doing the court adopted a more rigid approach to condonation
contrary to the jurisprudence of the Labour Appeal Court and the
Supreme Court of Appeals. Another court might reasonably find
that,
in determining the issue the court
a quo
ignored the good
prospects of success, the balance of convenience and the importance
of the matter.
[3]
The court erred in finding that the applicants had failed to
satisfactorily explain some of the periods of delay, and that this
was fatal to their application, and in finding that the explanation
for the delay was not reasonable, acceptable or satisfactory.
At all
times until the joinder application was dismissed the applicants
relied on the advice of their union and legal representatives
to the
effect that their matters could be joined with that of Mazibu.
Another court might reasonably come to the conclusion, having
regard
to all the relevant factors, that their conduct was acceptable. In
Motloi
v SA Local Government Association
[2006] 3 BLLR
264
(LAC) the court condoned a delay of four years having had regard
to all relevant factors instead of confining itself to one or two
factors. Although the delay is lengthy it is redeemed by the
reasonable and satisfactory explanation, the good prospects of
success,
the balance of convenience, the importance of the matter as
well as the fact that any prejudice caused to the respondent can be
addressed in the trial by way of an appropriate remedy.
The
court erred in finding that SACCAWU had failed to give an explanation
for the delays, and found against the applicants on this
basis. Since
SACCAWU was not a party to the proceedings, only the explanation or
failure to explain the delays by the applicants
should have been
considered to have been relevant. The court erred in having regard to
the possible civil remedies that the applicants
might have against
SACCAWU since it was not a party to the dispute. The dispute is one
between the applicants and their employer
and the court thus took
irrelevant factors into account. Another court might come to the
conclusion that since SACCAWU took reasonable
steps to prosecute the
applicants’ case, including instructing legal representatives
on their behalf, and relied on this
advice, the court erred in
considering a possible civil claim against SACCAWU in determining
whether or not to condone the late
referral. Another court might find
that a claim against SACCAWU is not a viable alternative and is not a
factor that should have
been considered.
[11]
The court erred in finding that SACCAWU’s view that it could
consolidate the applicants’ case with that of Mazibu
was
mistaken since the application for joinder had its merits and was not
farfetched. Alternatively, even if it was a mistake such
a mistake
was understandable and reasonable and therefore constituted an
acceptable explanation for the delay.
[12]
The court erred in finding that, because the applicants failed to
waive their right to compensation or reinstatement for the
period,
condonation would result in prejudice to the respondent. This is not
so since the respondent would have an opportunity
to present evidence
to prove that it had a fair reason for dismissing the applicants, and
will be able to raise the delays in the
determination of an
appropriate remedy. Another court might therefore find that any
prejudice the respondent might suffer would
not have been due to the
decision to grant condonation, but by the failure to prove the
fairness of the dismissals and that it
should not be prejudiced by
the delays.
[13]
The court erred in not considering the prejudice the applicants will
suffer if condonation is not granted, and the economic
impact on
their families.
[14]
The court erred in finding that the applicants should not have
accepted the advice of their union, attorneys and advocate as
to the
appropriateness of the joinder application, but should have heeded
the advice of the respondent, their opponent, that they
withdraw the
joinder application. Another court might come to the conclusion that
this finding is unfair to the applicants and
that the court erred in
this regard.
[15]
The court erred in interpreting section 14(4) of the Labour Relations
Act, 66 of 1995 (“the Act”) as stating that
a trade union
representative is an expert in law who cannot in any manner
misinterpret the law, even though lawyers often misinterpret
its
provisions. The section only gives the union representative the right
to perform certain duties in terms of the law but not
knowledge of
all labour laws. In any event a joinder issue is a civil procedure
rather than a labour matter.
[16]
The court erred in finding that the applicants were initially quick
in defending themselves and later became passive. The delay
was not
caused by their failure to remain active. They had given instructions
to competent people to handle their case, and had
reason to believe
it was properly handled. In any event, the evidence indicates that
notwithstanding their queries their representatives
continued to do
what they considered to be appropriate. Therefore it cannot be said
that their enquiries had much or any impact
on the prosecution of
their case. The court erred further in finding that the applicants
did not take appropriate steps to ascertain
progress with their
matter, when the record clearly indicates the efforts they made in
this regard.
[17]
The court erred in finding that the applicants had not explained why
they waited after the issuing of the second certificate
of outcome.
They had instructed a representative who had resigned from the union
and it was not possible for them to explain his
delay in dealing with
their matter.
[18]
The court erred in finding that the facts of the three disputes were
entirely different, as they related to the same employer
and the
applicants as members of the same union. The evidence reveals that,
in all probability the same witnesses would be required
to testify in
all the matters.
[19]
The court erred in finding that there was no explanation why the
union did not honour a promise to refer the second dispute,
and why
the applicants did not query this. The applicants explained in this
regard that Motane was the person able to explain this
but was not
available to provide an explanation. They went to the union on
several occasions and were given explanations they were
unable to
query. The court erred further in holding that the applicants had to
explain the conduct of Motane and had not done so,
when in fact they
had done this.
[20]
The court erred in finding that the applicants denied knowledge of
the reason why the union only referred the dispute involving
Mazibu.
The applicants indicated that that they were told that their cases
would be joined with that of Mazibu. The court erred
further in
considering the merits of Mazibu’s matter, which was not known
to it and not before it, to the prejudice of the
applicants.
[21]
The court ignored the evidence of the applicants, including that to
the effect that after the judgment of 31 August 2008 the
union
started the process of calling all of them, who were scattered all
over the country, to obtain their instructions, as they
are legally
entitled and obliged to do.
[22]
The court misunderstood the submissions of the applicants regarding
the joinder application, which included their belief that
it would
yield positive results and hence was the reason why they waited for
it to be finalised before taking further steps. The
court further
erred in requiring the applicants to explain why SACCAWU had not
arranged to set the joinder application down earlier,
when the
applicants did not have knowledge of this information.
[23]
The court misunderstood the papers when it stated that the period
from 14 October 2008 to March 2009 was unexplained.
[24]
The court erred in dismissing the application based on SACCAWU’s
failure to explain why it insisted on proceeding with
the joinder
application. SACCAWU had taken legal advice which confirmed that the
joinder application as being an appropriate step.
The court erred
further in blaming SACCAWU for the delays of September 2009 to
February 2010 in circumstances where SACCAWU instructed
attorneys who
kept insisting that they were busy with the matter.
[25]
The court erred in finding that SACCAWU should not have called the
applicants to a meeting to obtain instructions. The court
erred in
finding that the applicants should have had a means of communicating
amongst themselves despite the fact that they were
all scattered
around the country and were unemployed and had no means to finance
calls to one another. In any event it was the
union that was required
to communicate with the applicants.
[26]
The court erred in finding that the union should have taken the
advice of the respondent and withdrawn the joinder application,
and
should have referred the dispute with a condonation application
before seeking joinder, contrary to the advice of its legal
representatives. The court erred further in finding that the
applicants’ explanation for pursuing the joinder application
was that they did not have knowledge of the law and procedures of
this court. They had been advised by the union and its
representatives
that joinder was the appropriate step. They were
accordingly relying not on ignorance of the law but on legal advice.
[27]
The court considered the delay only together with the explanation,
and found it excessive and the explanation unreasonable,
when it was
required to consider all relevant factors including the balance of
convenience and the prospects of success in order
to determine if
there was just cause for condonation.
[28]
Having found that the applicants have
prima facie
good
prospects of success the court erred in finding that the prospects
were not as good as to compensate for the lengthy and unexplained
delays. The applicants had explained all delays logically and to the
best of their ability in the circumstances.
[29]
The court erred in finding that this case was appropriate for it to
close the doors of justice to the applicants, when the
facts revealed
that the applicants were in a helpless situation and needed the mercy
of the court. The court erred in finding that
considerations of
expediency outweighed those of justice when the applicants had
suffered so much injustice.
[30]
The court erred in finding that the applicants were themselves to
blame for the delays.
[31]
The court erred in finding that condonation would necessarily
prejudice the respondent, despite the respondent submitting that
it
could prove that the dismissal of the applicants was fair, and the
trial court would be able to address any prejudice caused
by the
delays should it find the dismissals to be substantively unfair.
[32]
For these reasons it was submitted that another court might
reasonably conclude that the court
a quo
erred in dismissing
the condonation application.
Analysis
[33]
Mr. Pretorius submitted on behalf of the respondent that the merits
of the application must be considered against the background
of the
primary object of the Act, being the expeditious resolution of labour
disputes. In this regard the court
a quo
endorsed the approach
taken by the Labour Appeal Court, the Supreme Court of Appeal and the
Constitutional Court that systemic
and other delays are unacceptable.
[34]
The question of whether a decision on condonation is a final decision
and therefore subject to appeal is now settled: see
Motloi v SA
Local Government Association
[2006] 3 BLLR 264
(LAC). However,
the nature of the interference of an appeal court in the context of
judicial discretion is limited. In making this
submission Mr.
Pretorius relied upon the authority of
NUMSA & Others v Fibre
Flair cc t/a Kango Canopies
[2000] 6 BLLR 631
(LAC), which was
approved in
SA Chemical Workers Union & Another v African
Commerce Developing Co (Pty) Ltd t/a Buffalo Tapes
(2000) 21
ILJ
1735 (SCA). In consequence of this approach, Mr. Pretorius submitted,
the appeal court will not exercise its own discretion regarding
the
grant or refusal of condonation on appeal afresh, unless it is first
satisfied that the court
a quo
committed a misdirection of the
nature described so as to warrant the setting aside of that decision.
One such ground would be
that the court
a quo
failed to act
“for substantial reasons” (see
Buffalo Tapes
supra
at [16]). Mr. Pretorius submitted that the applicants have neither
alluded to nor met this test. Mr. Makinta submitted on
the other
hand, relying on
Motloi v SA Local Government Association
[2006] 3 BLLR 264
(LAC), that a court on appeal was in as good a
position as the court
a quo
to decide whether good cause had
been shown for the granting of condonation and may substitute its
decision for that of the court
a quo.
However this begs the
very question clarified by
Fibre Flair
supra, in which the
test for interference was held to require the applicants to show that
“the court
a quo
acted capriciously, or upon a wrong
principle, or in a biased manner, or for unsubstantial reasons, or
committed a misdirection
or an irregularity, or failed to exercise
its discretion, or exercised its discretion improperly or unfairly”.
[35]
The applicants have failed to meet this test. In my view, there is no
reasonable prospect of the Labour Appeal Court reaching
a different
conclusion on the granting of condonation, which is in essence the
main ground of appeal. Even if the applicants are
correct in their
list of errors made by the court
a quo,
these would have to be
shown to be misdirection of the kind that would warrant interference
on appeal.
[36]
Although it may be appropriate to dispose of the application on this
ground, I nevertheless proceed to consider the merits
although I do
not intend to traverse each and every ground of appeal relied upon.
Many of the grounds of appeal cited by the applicants
incorrectly
reflect the court
a quo’s
judgment (for instance the
ground based on the assumed knowledge of the union officials), or are
based on facts not before the
court (for instance what advice was
proffered by the advocate briefed on behalf of SACCAWU). The essence
of the judgment is that
the delay of more than two years in referring
the two disputes was egregious; that the applicants failed to advance
a compelling
explanation for the various periods of delay by largely
extricating their union from the scene, and that in these
circumstances
the prospects of success, would have to be
overwhelming. It is moreover incorrect that the court
a quo
reformulated the legal test for condonation by failing to have
regard to the prospects of success. It is apparent that these were
considered and weighed against the lengthy and unexplained delays.
[37]
This is moreover not the kind of circumstance where the applicants
can simply escape the consequences of their union’s
conduct, or
lack thereof, as a mere convenience – they are the union and
its legal representatives. They cannot therefore
avoid the
consequences even if the union and its legal representatives had been
entirely to blame for the delay. This approach
has been endorsed by
the Labour Appeal Court in
inter alia
Allround Tooling
(Pty) Ltd v NUMSA
[1998] 8 BLLR 847
(LAC) at para 10;
Glansbeek
v JDG Trading (Pty) Ltd
[1998] 3 BLLR 223
(LAC) at para 11;
Nampak Corrugated Wadeville v Khoza
(1999) 20 ILJ 578 (LAC) at
para 8;
Waverley Blankets Ltd v Ndima & others Waverley
Blankets v Sithukuza & others
(1999) 20 ILJ 2564 (LAC) at
para 10 and
Sennet & Wessels (Pietersberg) BK v Prins
(1998) 19 ILJ 1134 (LAC) at para 18. The inescapable conclusion is
that the applicants were party to the full facts not being placed
before the court
a quo
in relation to the involvement of their
union, and were unable to satisfactorily explain various substantial
delays, least of all
the delay in bringing the condonation
application after the joinder application failed.
[38]
On the authorities citied by the court
a quo
the prospects of
success were held to be irrelevant in the absence of an acceptable
explanation for the delay. The applicants were
on final written
warnings for unprotected industrial action and had participated in an
overtime ban. It is trite that the prospects
of success would have to
be overwhelming to assist the applicants in circumstances where their
explanation is found to be so inadequate
as to constitute a complete
lack of an explanation. This approach is consistent with the
authorities cited and it cannot be contended
that the incorrect legal
test was applied or that the issue of whether good cause has been
shown was not properly determined, or
that the decision was
inconsistent with the jurisprudence of the Labour Appeal Court or the
Supreme Court of Appeals.
[39] It is incorrect that
the court
a quo
expected the applicants to follow the legal
advice of their opponents, or failed to take into account that they
pursued steps that
were clearly legally untenable. What the court
a
quo
found was that they had chosen the particular course of
action, which was nothing short of reckless and had to bear the
consequences
thereof.
[40] The applicants have
failed to show that there is a reasonable prospect that the Labour
Appeal Court will reach a different
conclusion to that of the court
a
quo
. The respondent submitted that an adverse costs order would
be justified in that the applicants have at every stage of the
proceedings
ignored the Rules of this court, and moreover insisted on
a hearing when the appeal could have been disposed of in chambers as
is envisaged in the Consolidated Practice Directive. I do not agree
that costs would be in the interests of justice and fairness
in this
instance since it would appear that the applicants have already been
sufficiently penalised by being left to their peril
by their union.
Order
[41]
In the premises, I make the following order:
The
application for leave to appeal is dismissed. There is no order as to
costs.
_____________
Bhoola J
Judge of the Labour Court
of South Africa
Date of hearing: 30
September 2011
Date of judgment: 21
October 2011
Appearance:
For the Applicants: Mr N
Makinta, E S Makinta Attorneys.
For the Third Respondent:
Adv P Pretorius SC instructed by Bowman Gilfillan.
9