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[2011] ZALCPE 4
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Myosana v National Bargaining Council for Chemical Industry and Others (P 191/2010) [2011] ZALCPE 4 (11 March 2011)
IN THE
MATTER HELD IN PORT ELIZABETH
CASE
NO: P 191/2010
Reportable
In the
matter between
MASIXOLE
MYOSANA
…....................................................................................
Applicant
And
THE
NATIONAL BARGANING COUNCIL FOR
CHEMICAL
INDUSTRY
…..........................................................................
1
st
Respondent
BONTSWA
MBOVANE NO
…....................................................................
2
nd
Respondent
SHATTERPRUFE
(PTY) LTD
…................................................................
3
rd
Respondent
JUDGEMENT
SHAI AJ
[1] This is an application by the applicant for the condonation of
his late filing of the review application and application for
the
review and setting aside of the condonation ruling made by the Second
Respondent, “the Arbitrator” dated 19 February
2009 and
issued under case no GPCHEM 268-08-09 under the auspices of the First
Respondent.
The facts:
[2] The applicant was employed by the Third Respondent in 2004 as a
temporary employee. He was permanently employed in 2005 .He
was
dismissed on 17 November 2007 following a disciplinary hearing. The
applicant referred his dispute to the First Respondent
on 2 February
2009 which made his referral late by 390 days.
[3] Together with the referral form the applicant applied for
condonation for his late referral. The arbitrator issued his ruling
on 19 February 2009, denying the applicant condonation of his late
referral.
[4] It is this ruling that is the subject of the review application.
[5] The Applicant lodged his application for the review and setting
aside of the said ruling on the 29 March 2010.
[6] The said ruling was faxed to the parties on the 23
rd
February 2009, a delay of more than a year in repeat of the lodging
of the application for review.
Legal position:
[7] The factors that need to be taken into account when determining
whether there is sufficient cause to grant condonation were
set out
in
Melane v Santam Insurance Co Ltd 1962 (4) SA at 532
and
involves weighing together the following factors; which are
interrelated : degree of lateness, explanation thereof, the prospects
of success and the importance of the case.The court went on and said
that although these factors are interrelated, are not individually
decisive, if there are prospects of success there would be no point
in granting condonation.
[8] The Melane decision was followed in many subsequent decisions. In
the case of
Moila v Shai NO and Others
(2007) 16 LAC 1.23.1
reported at (Butterworth)
2007
JOL 19117
LAC, Zondo JP cited the case of
Chetty v Law Society,
Transvaal,
1985 (2) SA 756
AD
with approval and said: “In
Chetty v Law Society, Transvaal
1985, (2) SA 756
(AD) Miller JA, on
behalf of the unanimous Court, dealt with the term “sufficient
cause” or “good cause”
when used in the context of
an application for rescission of a Judgement. At 765 D-E he said:
“
For obvious reasons a party showing no
prospect of success on the merits will fail in an application for
rescission of a default
judgement against him, no matter how
reasonable and convincing the explanation of his default. An ordered
judicial process would
be negated if, on the other hand, a party who
could offer no explanation of his default other than his disdain of
rules was nevertheless
permitted to have a judgement against him
rescinded on
the
grounds that he had reasonable prospects of success on merits.”
[9] The court went further to say that this principle should equally
be applicable to the application for condonation.
[10] The court went further at 33, and in relation to the
excessiveness of the delay and said:
“
If ever there was a case in which one
can conclude that good cause has not been shown for Condonation
without even considering prospect
of success, then this is it. When,
in an application for Condonation the delay is excessive and an
explanation been given for that
delay or an “explanation”
has been given, but such explanation amounts to no explanation at
all, I do not think it
is necessary to consider the prospects.”
[11] In the case of
Kritzinger v CCMA and Others (JR 2254/05
(2007) ZALC 85
(November 2007) Molahlehi J
said the following in
relation to the test as initiated in
Melane v Santam Insurance Co.
Ltd.
1962 (4) SA A532:
“
These factors are not individually
decisive but are interrelated and must be weighed against each other.
In weighing the factors
for instance, a good explanation for the
delay in lateness may assist the application in compensation for weak
prospects of success.
Similarly strong prospects of success may
compensate for the inadequate explanation and the long delays”
[12] What it means therefor is that the court when exercising its
discression will consider the circumstances of each case to come
to a
reasonable conclusion.
[13 ]In this case the application is about 13 months late, which is
excessive. The reason for the delay is that elections were
taking
place and I presume union officials did not have time to attend to
this matter (about 5 months). The reason for delay for
the other
period was that private attorneys and Legal Aid Board became involved
and in the long run told the applicant that they
are unable to help
him in January 2010. There was also a further unexplained period of
delay, that is from January to 29 March.
That the union official was
busy with election cannot be a reason enough to constitute good
cause. Perhaps one could understand
the delay in respect of attorneys
and Legal Aid Board trying to establish if they could help
considering issues of fees and rules,
but the further unexplained
three months delay leads one to conclude that the delay is not
properly explained.
[14] Even if I were to conclude that the delay is properly explained
the prospect of success in this matter is in my opinion very
poor.
The applicant was dismissed on 17 November 2007, but his late
referral was made on the 2 February 2009. The reason was that
when
the union made the referral they substituted his name for the
chairperson of his disciplinary hearing. The Bargaining Council
informed the union of this problem but the union took about a year to
correct that mistake. The applicant contends that he should
be
detached from the conduct of the union officials. The Commissioner
decided that period is too excessive and that alone disallowed
the
Condonation..
[15] In the unreported case of
Kurt Fontein v South African
Breweries JR1583 /01 and Others
Pakade AJ dealt with a case where
an applicant leaves his application in the hands of his
representatives, without him to pursue
the pleadings in order to
adhere to time limits set down by a court. The application for
Condonation was denied.
[16.] Without deciding the issue I do not know how the applicant
would surmount this hurdle in the review application.
[17]
My order is as follow:
The application for Condonation of the late filing of the review
application is dismissed.
No order as to costs is made.
[18] In view of the order above, I see no reason to deal with the
review application.
Shai AJ
Date of Hearing : 23
rd
February 2011
Date of Judgment : 11 March 2011
Appearances
For the Applicant : In Person
Instructed by :
For the Respondent: Adv R Wade (SC)
Instructed by : Wilson McWilliams Inc