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[2012] ZALCJHB 12
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South African Transport and Allied Workers Union and Others v K.B Tsotetsi Logistics CC (JS 459/09) [2012] ZALCJHB 12 (14 February 2012)
9
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JS 459/09
In the matter between:
SOUTH AFRICAN
TRANSPORT AND
ALLIED WORKERS UNION
…...............................................................
First
Applicant
M.J MOLOI AND 7 OTHERS
….........................................
Second
Further Applicants
AND
K.B TSOTETSI LOGISTICS
CC
…....................................................
First
Respondent
Heard: 19 January 2012
Delivered: 14 February
2012
JUDGMENT
TLHOTLHALEMAJE AJ
Introduction
[1] This is an opposed
application for condonation for the late filing of a statement of
claim brought by the Applicants. The dispute
pertains to the
termination of the Second to Further Applicants’ services on
account of operational requirements.
Other preliminary
issues
[2] At the commencement
of the proceedings, Mr. Mufamadi on behalf of the Respondent had
submitted that the Applicants’ application
should be dismissed
on the grounds that there was no proof that the deponent to the
Applicants’ founding affidavit, a Ms.
Craven, was authorised to
depose to the affidavit, and secondly that there was no proof that
the Second to Further Applicants were
members of the First Applicant.
[3] These preliminary
points were promptly dismissed due to the reason that in her
affidavit, Craven had averred that she was employed
by the First
Respondent as its National Legal Officer based at its head office and
was duly authorised to depose to the affidavit.
I fail to appreciate
what else would be required of a Union official in such circumstances
to prove his or her status. It is not
a requirement that deponents to
affidavits, more specifically Union officials, must always prove
authorisation or mandate every
time that they file documents on
behalf of the Union members. Unions generally act on behalf of their
members in accordance with
their constitutions, and all that it
required is proof of their registration in accordance with section 95
(7) of the Labour Relations
Act.
1
[4] The second
preliminary issue raised on behalf of the Respondent was even more
ridiculous. Prior to the termination of the Second
and Further
Applicants’ services, the Respondent and the First Applicant
had exchanged correspondence in regard to the issue
that led to this
dispute. Copies of such correspondence are attached to the parties’
founding and answering affidavits. Having
engaged the First Applicant
in regard to the impending retrenchments, it defies logic for the
Respondent to suddenly contend that
the Second to Further Applicants
could not have been its members. That engagement by the Respondent
with the First Applicant can
only infer its recognition of the Second
to Further Applicants’ membership of the First Applicant.
Background facts
[5] As appears from
annexures attached to the Applicant’s founding affidavit in
support of the application (Vide “NC3”
and NC4”), a
notice was issued to all employees by the Respondent on 02 October
2008 requesting them to attend a meeting
scheduled on 04 October 2008
in regard to possible retrenchments. On 06 October 2008, the First
Applicant’s official, Chris
Nkosi had sent correspondence to
the Respondent and expressed his concerns about the possible
retrenchments. On 11 October 2008,
Nkosi had responded to
correspondence from the Respondent advising that he was unavailable
to attend a meeting scheduled for 13
October 2008. He had suggested
15 October 2008 as an alternative date. In its correspondence, the
Respondent had then suggested
a meeting for 16 October 2008. It is
common cause that a meeting did not take place between Nkosi and the
Respondent. On 20 October
2008, however, the Respondent had issued
letters of termination to the Second to Further Applicants.
[6] A dispute was
referred to the National Bargaining Council for the Road Freight
Industry on 24 November 2008. A certificate of
non-resolution was
issued on 19 January 2009 and the statement of claim was only filed
with the Court on 05 June 2009 together
with an application for
condonation.
The Application
[7] In explaining the
delay in her founding affidavit, Ms. Norma Craven, who is the
National Legal Officer of the First Applicant
had averred that after
the certificate of outcome was issued, she only consulted with the
First Applicant’s local organiser,
Chris Nkosi and the Second
to Further Applicants on 03 March 2009. During the consultation, she
did not have the documentation
pertaining to consultations between
the Second to Further Applicants and the Respondent prior to the
terminations. She had then
asked the Nkosi to try and track down all
the correspondence. She needed these documents in order to ascertain
whether to proceed
with the matter or not.
[8] According to Craven,
Nkosi managed to locate most of the correspondence but not the
referral for conciliation which contained
the names of the Second to
Further Applicants. Nkosi was then instructed to go to the Bargaining
Council to locate the 7.11 forms.
As Nkosi was the only organiser in
the Springs local office responsible for attending to all
conciliations and arbitration hearings
of members in the area, he was
also involved in the national strike that was taking place in the
industry at the time. The 7.11
forms were only received by Craven on
11 May 2009 and she had immediately commenced drafting the Statement
of Case following consultations
with Nkosi. She contended that a
delay of six weeks was not excessive.
[9] In regards to the
Applicants’ prospects of success, Craven had averred that the
Second to Further Applicants were dismissed
without consultations;
that the Respondent had by 02 October 2008 when it issued
correspondence to the Second to Further Applicants,
already decided
who was likely to be affected by the retrenchments; that Nkosi had
made attempts to consult with the Respondent
in terms of s189 of the
Labour relations Act; that the Respondent had refused to change the
dates of meetings and proceeded to
issue letters of termination on 21
November 2008; and further that the Respondent had retrenched the
Second to Further Applicants
even though it kept employees who were
employed after them (i.e. that LIFO was not applied).
[10] Regarding prejudice
to the parties, Craven had merely contended that the delay was only
six weeks and that there could be no
prejudice to the granting of the
application.
[11] The Respondent’s
response via the answering affidavit of its Human resources manager,
John MacDonald in regard to the
reasons for the delay was that Nkosi
had an understanding of the Court’s rules; that it did not make
sense for Nkosi to consult
with Craven without the complete
documents; that it is not stated as to when Nkosi was able to locate
all the necessary documents
required; that the alleged outstanding
information required was not paramount to the extent that it could
have prevented the Applicants
from proceeding with their statement of
claim; and that the statement could have been filed and a
supplementary affidavit filed
at a later stage. It was further
averred that the delay was actually two months and excessive.
[12] In regards to
prospects of success, MacDonald had averred that the Respondent was
faced with operational requirements that
warranted to contemplate the
retrenchments; that the Respondent had identified or knew the
department and the employees that were
likely to be affected; that
attempts were made to invite the First Applicant for consultations
without success; that despite invitations
and attempts to accommodate
them on the dates suitable to everyone and telephonic agreements, no
one from the First Applicant had
“pitched up”. It was
further contended that despite the absence of the First Applicant,
consultations were held with
the Second to Further Applicants and
that the Applicants have not made out a case indicating prospects of
success.
[13] Macdonald further
averred that the Respondent would suffer financial prejudice as the
explanation for the delay is not satisfactory
and further since there
is no
prima
facie
case
to answer to; and lastly that the Applicant could have prevented any
prejudice by referring the dispute on time.
The legal framework
[14] Section 191 (11) (a)
of the Labour Relations Act provides that any referral to the Labour
Court as contemplated under subsection
(5) (b) must be made within 90
days after a dispute has been certified as unresolved. Section 191
(11) (b) enjoins the Court to
condone non-observance of the time
frames on good cause shown. In considering whether good cause was
shown, the Court will normally
exercise its discretion after taking
into account the factors identified in
Melane
v Santam Insurance Co Ltd.
2
These include the degree
of lateness, the explanation thereof, the prospects of success on the
merits of a claim and the importance
of the case. The Court in that
case went on and held that although these factors are interrelated,
they are not individually decisive
and must be weighed against each
other. Thus if there are no prospects of success there would be no
point in granting condonation.
The court further held that without a
reasonable and acceptable explanation for the delay, the prospects of
success are immaterial,
and without prospects of success, no matter
how good the explanation for the delay, an application for
condonation should be refused.
[15] In
Foster v Stewart Scott
Inc,
3
and as further reiterated
by Molahlehi J in
Mnisi
and Others v Extrata Alloys South Africa (PTY) Ltd – Mototolo
(Lebowa)
4
two further factors need
to be looked at in considering such applications. Thus an applicant
must have shown; (a) an interest in
the finality of the matter and
the convenience of the court; and (b) avoidance of unnecessary delay
in the administration of justice.
[16]
In
National Union of Mineworkers v Council for Mineral Technology,
5
the Court held that:
‘
What is
needed is an objective conspectus of all facts. A slight delay and a
good explanation may help to compensate for prospects
of success
which are not strong. The importance of the issue and strong
prospects of success may tend to compensate for a long
delay. There
is a further principle which is applied and that is that without a
reasonable and acceptable explanation for the delay,
the prospects of
success are immaterial, and without prospects of success, no matter
how good the explanation for the delay, an
application for
condonation should be refused.’
[17] In applying the
above principles in
Moila
v Shai NO and Others
,
6
Zondo JP (As he then was)
with McCall AJA and Kruger AJA
concurring
held at para [34] of the judgement that;
‘
Where in an
application for condonation, the delay is excessive and no
explanation has 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
of success.’
Evaluation
[18] In her arguments,
Ms. Mitti on behalf of the Applicants had reiterated that the delay,
which was caused by arrangements and
securing of relevant documents
in order to finalise the drafting of the statement of case was
minimal and could not be prejudicial
to the Court or the Respondent.
The essence of these submissions read together with Craven’s
averments is that the Court
must indulge the Applicants,
notwithstanding the First Applicant’s clear tardiness in
attending to this matter. This cannot
be countenanced more
specifically when regard is had to the following.
[19] A delay of six weeks
in filing a statement of claim is excessive if regard is had to the
period granted to a party after a
certificate of outcome has been
issued. The Applicants’ attempt at downplaying the extent of
the delay is futile and is further
indicative of its flippant
approach in regard to this application. Firstly, there is no
explanation from the Applicants in regard
to what steps were taken in
expediting the referral of this dispute between 19 January 2009,
after the certificate of outcome was
issued, and 03 March 2009 when
Craven allegedly first consulted with the local organiser, and the
Second to Further Applicants.
Secondly, even if it is accepted that
all the necessary documents were obtained on 11 May 2009, there is
still no explanation as
to the reason why the statement of case was
only filed on 05 June 2009.
[20] The explanation that
there was still one outstanding letter on 03 March 2009 that
prevented the finalisation of pleadings is
not acceptable. As was
correctly pointed out on behalf of the Respondent, nothing prevented
the Applicants from filing their statement
of claim on time and then
amending or supplementing it thereafter. A further concern is that
Craven does not appear to have taken
this Court into her confidence.
One of the alleged reasons the statement of case could not be filed
on time was that Craven needed
the Form 7.11 as it contained the list
of the names of the Second to Further Applicants. If she had indeed
consulted with Nkosi
and the Second to Further Applicants on 03 March
2009, I fail to appreciate the reason she would still need the list
of their names
from the missing Form 7.11 when she could have simply
got their names from them during her alleged consultations. The only
inference
to be drawn from these contradictions is that there was
never a consultation between herself and the Second to Further
Applicants
as she had alleged. The Court should take a dim view of
parties who approach it for an indulgence and yet at the same time
attempt
to mislead it.
[21] The delay, in my
view, was purely as a result of inaction and tardiness on the part of
the First Applicant, and it would make
a mockery of the quest for
administrative justice to indulge parties who make their own
administrative problems the problem of
this Court or that of the
other party to the dispute. Of further concern are Craven’s
averments that she was waiting for
the outstanding documents in order
to decide whether to proceed with the matter or not. If she had
indeed consulted with the Second
to Further Applicants as she had
alleged, surely she would have been in a position to assess the
merits of their case and made
an informed decision. The Form 7.11
would not have assisted her in any manner in the assessment of the
merits of the case. This
conduct is a classic case of an applicant
having failed to show avoidance of unnecessary delay in the
administration of justice.
[22] To conclude in
regard to the above considerations, there is no reasonable or
acceptable reason proffered by the Applicants
for the delay in filing
their statement of claim. Furthermore, there is nothing from the
Second to Further Applicants to indicate
what steps they took in
order to expedite the prosecution of their claim immediately after
the certificate of outcome was issued.
In the words of Zondo JP in
Moila
(
supra
), the explanation as proffered by the
Applicants is ‘no explanation at all’.
[23] Given the
conclusions reached in regard to the extent of the delay and the lack
of an explanation in that regard, this application
would ordinarily
be dismissed if one was to strictly follow the approach in
Moila
(
supra
)
.
However, for the sake of completeness, it
would be proper to deal with the other considerations pertaining to
such applications.
[24] The Applicants’
submissions or averments in regard to their prospects of success on
the merits of their claim are equally
lacking in substance. Despite
the averments that the termination of the Second to Further
Applicants’ services was unfair,
there was no supporting or
confirmatory affidavit from anyone of them in this regard. This would
have been more crucial in that
neither Nkosi, who had deposed to a
confirmatory affidavit nor Craven had personal knowledge of how the
terminations were effected.
Thus their averments in that regard are
not within their personal knowledge. Correspondence attached to the
parties’ respective
affidavits indicates that attempts were
made to involve the First Applicant in consultations prior to
terminations. The Respondent’s
averments that Nkosi failed to
attend such consultations as scheduled and agreed between the parties
telephonically remains undisputed
as neither the Applicants nor Nkosi
in particular saw the need to file a reply.
[25] Having had regard to
the submissions made on behalf of the Respondent that consultations
were indeed held with the Second to
Further Applicants prior to the
notices of terminations being issued, and in the absence of any other
contention from them in that
regard,
prima facie
, it appears
that the Respondent has no case of unfairness to answer to.
[26] The submissions made
on behalf of the Applicants in regard to the issue of prejudice were
equally thin in substance. The obvious
prejudice to the Respondent,
if condonation were to be granted, is that it would be forced to
defend a matter more than three years
after the dispute arose. It
would be inconvenient to the Court to grant an indulgence in
circumstances where a party has clearly
shown no intention of
timeously prosecuting its claim or any interest in the finality of
its matter. Having had regard to the conclusions
reached in regards
to the excessive nature of the delay, the lack of a reasonable or
acceptable explanation regarding the delay
which amounts to no
explanation at all, the lack of prospects of success on the merits
and other considerations applicable to such
applications, there is no
reason in law or fairness that justifies that the application for
condonation be favourably considered.
Costs:
[27] The Court has
discretion on whether to award costs having had regard to the
requirements of law and fairness. In exercising
that discretion, the
Court is also enjoined to consider factors under Section 162 (2) of
the Labour Relations Act. One of those
factors is the conduct of the
parties in proceeding with or defending the matter before the Court
as provided in Section 162 (2)
(b) (i). In my view costs should
follow the results in this case when regard is had to the Applicants’
persistence with this
application when it was clearly doomed to fail.
Even more irksome is the Applicants’ feeble attempts at
misleading this Court
in their averments in support of the
application, which conduct bordered on contempt if not perjury.
Order:
The Applicants’
application for condonation for the late filing of their statement
of case is dismissed with costs.
_________________
TLHOTLHALEMAJE AJ
ACTING JUDGE OF THE
LABOUR COURT
Appearances:
For the Applicants: MM.
Mitti of Mitti Attorneys
For the Respondent: Adv.
R. Mufamadi
Instructed by:
Nemavhulani Attorneys
1
Act
No 66 of 1995.
2
1962
(4) SA 531
(A).
3
(1997)
18 ILJ 367 (LAC)
4
(Case
No: JS596/09),
5
[1999]
3 BLLR 209
(LAC) at para 10.
6
(2007)
28 ILJ 1028 (LAC)