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[2012] ZALCJHB 108
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Makgotlho v Commission for Conciliation Mediation and Arbitration and Others (JR 1009/11) [2012] ZALCJHB 108 (26 January 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 1009/11
In the matter between:
CALVIN POPI MAKGOTLHO
..............................................................................
APPLICANT
And
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
...............................................................
First
Respondent
A PIETERS N.O
.......................................................................................
Second
Respondent
EXXARO RESOURCE
................................................................................
Third
Respondent
Heard: 24 January 2012
Delivered: 26 January
2012
Summary:
Review
- condonation ruling. Application failed – no satisfactory
reasons
proffered.
JUDGMENT
MOLAHLEHI J
[1] This is an
application to review and set aside the ruling made by the second
respondent (“the arbitrator”) under
case number
SATW4086/11 dated 21 April 2011. In terms of that ruling, the
arbitrator dismissed the condonation application for
the late
referral of the dispute to the bargaining council by the applicant.
Whilst it does not seem that the dismissal of the
applicant is in
issue, the circumstances of his dismissal are not apparent form the
papers. The applicant, in his founding affidavit,
simply indicates
that the dismissal arose from an occurrence in August 2010 when he
was dismissed without “proper
adherence
to the contract that they had.”
[2] The review
application was not opposed.
[3] It was apparent from
the reading of the papers that the applicant is a lay person. It was
in this regard that the court offered
him the opportunity to seek
assistance from the pro bono legal representatives. He was very
reluctant and insisted that the court
should determine the matter on
the basis of the paper which were before it. The matter was stood
down and the applicant was informed
that he has a right to choose
whether he would wish to consult lawyers for advice but that he
should consider that proposal during
the break very seriously.
[4] The attorney that was
present in the pro bono office at the time could not assist because
he was conflicted. The pro bono office
then made arrangements with
the Legal Aid Board South Africa to assist. The Legal Aid Board
promptly sent an attorney to assist.
[5] The instruction given
to the attorney by the applicant was that he should only request the
court to decide the matter on the
basis of the papers before it.
[6] The grounds of review
as set out in the applicant’s founding affidavit reads as
follows:
‘
This should be reviewed because
the way that I was dismissed was not quantified in the contract that
we had, me and the company.
The CCMA ruling was unprofessional.
There is enough grounds on my contract
for this matter to be reviewed.
The judgment at the CCMA was not
enough for me to understand the way that I requested services. It was
not explanatory enough to
convince me about the outcome of my
contract with my previous employer.
The conclusion of my services with my
previous employer was and it is still not instructed in the copy of
my contract. I request
exxaro to pay me US$30 00000 00000.00 payment
for that particular circumstances.’
[7] The ruling of the
commissioner dismissing the applicant’s condonation reads as
follows:
‘
The applicant’s
explanation for the excessive delay in referring the matter is not
convincing. His prospects of success in
the matter are also doubtful
on the version given for his alleged dismissal.’
In dealing with the
reasons for the delay in referring his dispute to the bargaining
council the applicant states in one sentence
that the delay was due
to due to “studies.”In as far as prospect of success the
applicant says,“My working experience
is quantitative”.
[8] It is trite that when
a dispute is referred to the CCMA outside the thirty days period as
prescribed for by section 191 of the
Labour Relations Act, the
applicant is duty bound to apply for condonation for the late filing
of his/her dispute. It is also trite
that in considering the
application for condonation, the commissioner ceased with the matter
has a discretion to exercise in determining
whether condonation
should be granted. The approach to be adopted in considering whether
to grant condonation has been set out
in a number of judgments where
it has repeatedly been stated that in terms of the leading case of
Melane v
Santam Insurance Co Ltd,
1
the factors to take into
the account are the degree of the delay and the reason or the
explanation for the delay, the prospect of
success of the party
seeking the indulgence succeeding in its claim or defence, the
prejudice that the party will suffer if condonation
is granted or
refused, and finally whether it is in the interest of justice to
grant condonation sought.
[9] The authorities have
also emphasized over the period that condonation should not be
readily granted in cases involving individual
disputes. In cases
involving individual disputes, the general view is that condonation
should only be granted in those instances
where the explanation for
failure to comply with the time frames is compelling and refusal to
grant condonation will result in
miscarriage of justice.
2
[10] In the present
instance, the duty to persuade the commissioner that he/she should
grant condonation, in other words extent
the thirty days period as
provided for in the LRA, was on the applicant. Applicant was required
to provide the commissioner with
information sufficient for him to be
able to exercise the discretion given to him by the law. In the
absence of sufficient explanation
for the delay, the commissioner
would not be in a position to properly exercise his or her discretion
in favor of granting the
condonation and therefore the logical
conclusion would be to refuse condonation. As indicated above, the
applicant simply says
the reason for the delay in referring his
matter to the CCMA was due to “studies”. It is not clear
as to in what way
the studies made it impossible or difficult for him
to comply with the time prescribed by the law...
[11] The same applies to
the prospects of success. The applicant has failed to take the
commissioner into his confidence by explaining
the circumstances that
surrounded termination of his contract of employment. The details
regarding the facts and circumstances
of the termination of contract
are important in assisting the commissioner to asses as to whether
there are prospects of success.
[12] In my view and on
the basis of the above, the applicant has failed to make out a case
warranting interference with the commissioner’s
ruling that he
be denied condonation for the late referral of his dispute to the
bargaining council.
[13] In the premises the
applicant’s review application is dismissed with no order as to
costs
________________
MOLAHLEHI J
JUDGE OF THE LABOUR COURT
OF SOUTH AFRICA
APPEARANCES:
APPLICANT: The Applicant
in person
RESPONDENT: No appearance
1
1962(4)
SA 531 (A) at 532B – D.
2
See
Queenstown Fuel Distributors CC v Labuschagne N.O and Others
(2000) 1 BLLR 45
(LAC) at 53 F-J.