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[2011] ZALCD 13
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Mngadi v Mondi Business Papers (D 813/2007) [2011] ZALCD 13 (18 February 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
Held in Durban
Case no: D 813/2007
In the matter between
BONGANI PHILIP MNGADI
..........................................................
Applicant
And
MONDI BUSINESS PAPERS
........................................................
Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
SHAI, AJ
INTRODUCTION
[1] This is an application by the Applicant for
condonation for the late filing of the statement of claim. The
Applicant was employed
by the Respondent in May 1990. He was
dismissed on 30 April 2007 for operational requirements, a dispute
which was referred to
the
Commission for Conciliation Mediation
and Arbitration (“the CCMA”)
. The commissioner issued
a certificate of non-resolution on 10 July 2007. The matter was then
referred for arbitration on 15 July
2007. On 30 August 2007 the
arbitration commissioner ruled that the CCMA lacked jurisdiction to
hear the matter.
[2] The Applicant filed his statement of case on 30
January 2008. It is this referral which the Applicant seeks
condonation for
its late referral. The Respondent is opposing this
application.
[3] On 02 September 2010 the court issued an order
amongst other in the following terms:
“
1. The Applicant is ordered to file an
application for condonation within ten (10) days as of today,
2. …
3. …
4. In the event if the Applicant fails to file the condonation reply
within the prescribed time period, the referral is dismissed.”
[4] The Applicant has failed to comply within this time
frame and this then led the Applicant on 03 February 2011 to apply to
the
court to use its discretion to extend the time frames and condone
the said late filing of the application for condonation as directed
to by the court as outlined in paragraph 3 above.
[5] Further that the respondent has raised a point
in
limine
that the Labour court does not have the jurisdiction to
adjudicate any dispute about the procedural fairness of the dismissal
based
on the employer’s operational requirements in any dispute
referred to it in terms of section 191 (5) (b) (ii) of the Labour
Relations Act 1995. This matter is more associated with the merits of
the matter and I direct that it be heard with the merits
of the case.
The application to condone the late filing of the
condonation within the prescribed period as per court order on 02
October 2010
as outlined in paragraph 3 above
[6] The late condonation application was set down for 03
February 2011. At the beginning of the proceedings the Applicant’s
representative having noted that the condonation application did not
comply with the order given in paragraph 3, sought to apply
for
condonation of the said non compliance with the order from the bar.
No notice of motion accompanied by an affidavit was filed
with the
court. Counsel for the Respondent opposed the application. I agreed
to hear the said application together with the main
condonation
application on condition that if I find in favour of the Applicant I
will also decide the main condonation application.
Further that if
the Applicant fails in this regard then it will serve no purpose to
decide the main condonation application.
LEGAL POSITION
[7] The factors that need to be taken into account in
determining whether there was sufficient cause to grant condonation
were set
out in
Melane v Santam Insurance Co Ltd 1962 (4) SA at
532
and it 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 and are not
individually decisive, if there are no prospects of success there
would be no point in granting condonation.
[8] The Melane decision was followed in many subsequent
court decisions.
In the case of
Moila v Shai NO & Others
(2007)
16 LAC 1.23.1
reported (Butterworths)
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 a unanimous court, dealt with the term ‘sufficient
cause’ or ‘good cause’ when
used in the context of
an application for rescission of a judgment. 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
judgment 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 judgment against him
rescinded on the grounds that he had reasonable prospects of success
on merits.”(My
underlining)”
[9] The court went further to say though the above
passage was said in respect of an application for rescission of a
judgment there
is no reason why the principle cannot or should not
hold good in respect of an application for condonation such as the
one the
Appellant made to the CCMA in the case that was before the
court.
[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 that it is necessary to consider
the prospects”.
[11] In the case
Kritzibger v CCMA & Others
(JR 2254/05
[2007] ZALC 85
(9 November 2007)
Molahlehi J said
the following in relation to the test as initiated in
Melane v
Santam Insurance Co Ltd 1962 (4) SA at 532:
“
These factors are not individually
decisive but are interrelated and must be weighed against each. In
weighing the factors for instance,
a good explanation for the
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] In the end what it means is that the court on
exercising its discretion will consider all the circumstances of each
case to
come to a reasonable conclusion.
[13] The application for condonation was made one day
late. The Applicant through its Counsel indicates that the
instruction to
draft the condonation application was given to the
Counsel timeously but there was a delay in returning the draft
application.
At the time the applicant had to sign the document, he
could not be traced until after the lapse of the condonation period
ordered
by the court. Further, the Applicant’s Attorney
realising the predicament they were in caused a letter to be
dispatched to
the respondent’s Attorneys explaining the
situation and faxed them the Notice of Motion without supporting
affidavits which
was also served with the Registrar within the time
frame. However, it is trite
law that
such a service amounts to no service. See Morgan Fashions SA (PTY)
LTD v CCMA and Others
(1990) 10 BLLR 1063
(LC). In this case, the
court said the following:
“
Although Rule 7A was not in force at the
time that the proceedings were instituted in the present matter, any
application must be
supported by an affidavit. It is not sufficient
merely to serve a notice of motion”.
The counsel for the applicant has conceded that there is
a late filing.
[14] Given the period of delay, which is one day, and
the reasons given to the late filing of the condonation application
and the
steps that the applicant’s attorneys took to ensure
compliance, I have come to the conclusion that good cause for
condonation
has been shown. I have also taken into consideration the
prejudice that the respondent may suffer and came to the conclusion
that
there is little if any prejudice. They were appraised and aware
of the situation by way of the letter and notice of motion, of the
difficulties that the applicant party was faced with.
[15] I therefore condone the late filing of the
condonation application
THE MAIN APPLICATION FOR CONDONATION
Degree of lateness
[16] The CCMA issued a certificate of none-resolution on
the 30/10/2008 and immediately referred the matter for arbitration
wherefore
the CCMA commissioner pronounced that the CCMA lacks
Jurisdiction to determine the matter mainly because it was a
retrenchment
of more than one employee. The applicant is of the view
that the counting of days for purpose of Section 191 of the Labour
Relation
Act of 1995 should start after the issuing of the ruling by
the commissioner that the CCMA lacks jurisdiction to determine the
matter. However, applicant contents that if I rule that the counting
starts after the issuing of the certificate of outcome then
the
Applicant concedes that its application is late by 113 as argued
above by the respondent. The applicant contents that the application
is late by 64 days.
[17] Section 191 (5) (b) ii) provides amongst others as
follows;
“
If a Council or Commission has certified
that the dispute remains unresolved, or if 30 days have expired since
the Council or the
Commission received the referral and the dispute
remains unresolved-
(a)
(b) the employee may refer the dispute to the Labour Court for
adjudication if the employee has alleged that the reason for
dismissal
is -
(i)
(ii) based on the employers operational requirements.
[18]
Section 191
(11) (a) of the
Labour Relations Act of
1995
, provides as follows:
“
(a) the referral, in terms of subsection
(5)(6), of a dispute to the Labour Court for adjudication, must be
made within 90 days
after the Council or (as the case may be) the
Commission has certified that the dispute remains unresolved.”
[19] Going through the two paragraphs above, there can
be no doubt that time starts to count after the issuing of the
certificate
by the Council or Commission or expiry of 30 days since
the council or the commissioner received the referral.
[20] Having determined the issue in the preceding
paragraph, it is now common cause that the application is late by 113
days, which
in my opinion is long.
EXPLANATION OF THE DELAY
[21] The applicant in his founding affidavit explained
that after the certificate of none-resolution was issued he referred
the
matter to the CCMA for arbitration wherefore the commissioner
issued a ruling to the effect that the CCMA did not have jurisdiction
to arbitrate the matter. The ruling is dated 30
th
August
2007. Further he laboured under a mistaken belief that for the
purpose of
Section 191
(11)( a), dies starts to run after the
commissioner has issued the said ruling.
[22] In the midst of process of the CCMA, he was
unrepresented although he later engaged an attorney to help him
through. He further
contents that the CCMA office was closed during
the December period. I can safely take judicial notice that the CCMA
offices do
not close during December period. However, the CCMA goes
into recess with a skeleton staff to attend to accepting referrals
and
to other urgent matters. In the circumstances, it is probable
that the applicant experienced problems in receiving the ruling. The
fact of being unrepresented at the initial stage may have added to
the applicant hues. However I am satisfied that once he received
the
ruling, seven days thereafter, he filed his statement of case. In the
circumstances, I am of the opinion that the delay, albeit
long is
fully and properly explained.
PROSPECTS OF SUCCESS
[23] In so far as prospects of success, the applicant in
his founding
Affidavit indicates only that his prospects of success
are good. This however, was amplified by Counsel during argument and
in his
statement of case. Counsel for the applicant indicated that
various meetings were held. Secondly a similar position to that of
the applicant was created but offered to a person with lower
qualifications. The position was however given a new name. Counsel
for the respondent took view that the applicant had laid no basis for
saying he has good prospects of success in his founding affidavit.
I
have indicated above that Counsel for the Applicant clarified this
statement and of the opinion that he has laid a reasonable
basis for
prospect of success.
IMPORTANCE OF THE CASE
[24] The applicant contents that the case is important
to him more so in the light of the good prospect of success as
contained
in his statement of claim.
[25] When all these factors are weighed together the
cumulative effect leads me to the conclusion that a good cause for
condonation
has been made despite there being a long delay.
[26] In the premise I conclude that
1. The late filing of statement of case by the applicant
is condoned.
2. The Applicant to pay the costs of the application.
__________________
SHAI, AJ
Date of hearing : 3 February 2011
Date of Judgment : 18 February 2011
Appearances:
On behalf of the Applicant : Advocate Z. Oliver
Instructed by : Lushen Pillay Attorneys
On behalf of the Respondent : Advocate I. Pillay
Instructed by : Deneys Reitz Inc.