About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2012
>>
[2012] ZALCJHB 26
|
|
Dichabe v Department of Local Government and Housing (North West) and Another (JR663/05) [2012] ZALCJHB 26 (20 April 2012)
REPUBLIC
OF SOUTH AFRICA
the labour court of
South Africa, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 663/05
In
the matter between:
EDWIN
DICHABE
…...................................................................................................
Applicant
and
DEPARTMENT
OF LOCAL GOVERNMENT
AND
HOUSING (NORTH WEST)
…..............................................................
First
Respondent
BAROLONG
BOORA TSHIDI TRIBAL AUTHORITY
….........................
Second
Respondent
(NORTH
WEST)
Heard:
15 December 2011
Delivered:
20 April 2012
___________________________________________________________________
JUDGMENT
___________________________________________________________________
KUMALO
AJ
Introduction
The applicant in this
matter filed a statement of case in terms of which he contended that
his contract of employment was unilaterally
terminated and that he
should for that reason be reinstated into his previous position.
The referral was filed
out of the prescribe time period and accordingly the applicant filed
an application to have the late referral
of the statement of case
condoned.
The issue before this
court at this stage concerns only whether or not the late filing of
the statement of case should be condoned.
Background facts
The applicant in his
statement of case states he was prior to his dismissal employed as a
tribal policeman by the Department of
Local Government Housing,
Planning and Development, North West Province, stationed at Ratshidi
Tribal Authority
1
.
The applicant further
states that in August 1996 his employment with the department was
unilaterally terminated in that he was
advised by the department
that he had been re-employed following the intervention of and
agreement with the Public Protector.
The applicant says he
did not pursue the issue of his unilateral termination of his
employment until the 1
st
of October 2001 when he
received his salary advice without any deductions. He says he cannot
find that salary advice but attaches
a similar one dated 31 October
2001
2
.
When he raised the matter with the department, he was informed that
he was no longer a permanent appointee but a temporary one
3
.
This change of employment status he says was never discussed with
him.
In trying to resolve his
problem with the respondents the applicant approached a number of
institutions for assistance and these
include, the department of
labour, the Ombudsman and the Public Protector, and the Human
Resources Management office of the department
of local government
and housing.
According to him the
response he received was that he had resigned. An enquiry form from
the department, dated 25 March 2003,
gives his date of resignation
as 31 October 2001
4
.
However, the respondents according to him failed to produce a copy
of the resignation letter. He then referred the matter during
October 2003 to the Commission for Conciliation Mediation and
Arbitration (the CCMA). The matter could not be resolved at
conciliation
and accordingly the certificate of outcome was issued
on 9 March 2004.
During August 2004 the
applicant engaged the services of KJ Ketse Attorneys to act on his
behalf. When his attorneys raised the
matter with the Office of the
Premier they were advised that the applicant was not a “public
servant” but rather
an employee of the Barolong Boo Ratshidi
Traditional Council
5
.
The applicant then filed
his statement of case which as stated earlier was filed late in
terms of the prescribe time period for
filing the same. The
statement of case was filed on the 26
th
of May 2005. The
applicant states that he could not file the statement of case
earlier because he did not have funds to brief
attorneys to
represent him.
6
On the 1
st
of August 2005, the
Registrar of the Labour Court informed the applicant by fax
transmission that the matter could not be enrolled
in the Labour
Court until the following directions had been complied with; namely,
the original documents must be filed; proof
of service on all
interested parties by way of affidavit in terms of Rule 4 was
required; proof by way of an affidavit that the
CCMA gave notice of
the arbitration award to respondent prior to this application being
brought to the Labour Court; the parties
have held a pre-trial
conference in terms of Rule 6(4); and the record of the CCMA
proceedings must be filed.
In my view, for the
reasons set out below the applicant’s application for
condonation stands to fail.
In the case of
FAWU
v Foodtown Incorporated (Pty) Ltd
7
the delay in filing
application for leave to appeal was out of time by some 7 months.
The Court dismissed the application for
condonation on the basis
that significant delays had not been accounted for. In doing so he
took into account the practical difficulties
of joining a large
number of some 67 individual applicants; that the trade union they
belonged to would have to consider to what
extent it would be
willing and financially able to continue to act on their behalf; the
applicants were lay people in a poor
financial situation; they had
to fundraise in order to finance the litigation. Those were all
factors that the learned Judge
took into account in their favour.
The Court further held
that:
8
“
Nevertheless,
there are periods on the papers in which delay goes unexplained. It
is necessary, and the courts have repeatedly stressed
this, to set
down in the founding affidavit a proper chronicle with the requisite
explanation, presenting excuses where necessary,
of precisely what
happened at each stage in the proceedings. The founding papers do not
do that with sufficient clarity to enable
me to be confident as to
why delays which were identifiable, occurred. There is no point in my
considering each of the delays in
turn and the extent to which they
have been the subject of explanation. Suffice it to say that at the
very least from the period
some time during January to the time when
the application was launched, there is a hiatus of some - at best for
the applicants
- some seven weeks that goes completely unexplained
and that should have been explained in the circumstance. The Courts
repeatedly
stress that the question of the explanation for the delay
must be weighed in the balance with the prospects of success on the
merits,
the stronger the prospects of success the weaker can be the
explanation for the delay and the more culpability of the parties in
relation to the delay, will be excused.”
He concluded that had
the prospects of success been strong he would have been inclined to
grant condonation, but he could not
conclude that they were strong
and declined to condone the late filing of the application for leave
to appeal.
In
Queenstown
Fuel Distribution CC v Labuschagne NO and others
9
the Court in dealing
with condonation in the context of late filing of a review
application held that the late filing of a review
application can be
condoned on good cause shown.
In the leading often
quoted case of
Melane
v SANTAM Insurance Co Ltd,
10
the
Court held that:
“
What is needed is
an objective conspectus of all the facts. Thus a slight delay and a
good explanation may help to compensate for
prospects of success
which are not strong. Or the importance of the issue and strong
prospects of success may tend to compensate
for a long delay.
Exceptionally, the degree of non-compliance may be so gross and the
explanation therefore so inadequate, that
the court may be moved to
refuse condonation, regardless of the prospects of success in the
main proceeding [My emphasis]”
In the applicant’s
case the delay in applying for condonation is so gross that
condonation ought not to be granted. The
notice of application for
condonation and accompanying affidavit were filed at court on 15
July 2010 and the application was
finally heard on 15 December 2011.
The statement of claim in support of reinstatement is dated 29 April
2005 and has a court
stamp dated 26 May 2005. The certificate of
outcome is dated 9 March 2004. This is some nine months after the
certificate of
outcome was issued and more than six years after the
conciliation process was concluded. This is a massive delay that
grossly
prejudices the first respondent and cannot be condonded by
the court.
In so far as the
applicant places reliance for establishing the fact of dismissal in
terms of Section 186 (1)(a)(b) (unilateral
termination of
employment, which is unfair; an offer to renew a fixed term contract
on less favourable terms.). the applicant
misconceives the
applicability of the cases decided under this section, as well as
sections 185
and
188
of the
Labour Relations Act of 1995
and Sec 23
of the Constitution. In the
Van
Niekerk v Medicross Health Care Group (Pty) Ltd
11
,
the issue there was not whether the applicant was employed by the
respondent. There was already an employment relationship between
the
parties. It was the demotion from a managerial position to a
clerical status, an inferior position without consultation or
counseling that was in issue. In these particular circumstances
there was a dismissal which was held to be unfair. Similar
considerations apply in Van der Riet v Leisurement t/a Health
Racquet Clubs
12
; Visser v Vodacom (Pty)
Ltd
13
;
Van Wyk v Albany Bakeries and Others.
14
The applicant’s
case is also unsustainable even when prospects of success are
considered. The applicant has in this regard
failed to show that he
has a chance of succeeding when the main case is considered, in
particular as concerning the issue of
whether he was dismissed by
the respondents.
The respondent had asked
for dismissal of the application with costs. Given the unacceptable
and unreasonable delays ostensibly
caused by lack of funds of the
applicant, I am of the view that such an order would not be
appropriate in this case.
Accordingly, I make the
following order:
The application for
condonation is dismissed;
The applicant’s
claim is dismissed
Each party to pay its
own costs.
____________________
Kumalo AJ
APPEARANCES:
FOR THE APPLICANT:
Advocate N L Skibi.
FOR THE RESPONDENT:
Advocate K M Molemoeng.
1
Paragraph
3 of the indexed bundle
2
Annexure
“D” page 14 of the indexed bundle
3
Annexures
“E” and “F” pages 15, 16 of indexed bundle
dated 6 April 1999 and 13 October 1999 respectively
4
Annexure
“G” page 17 of the indexed bundle
5
Annexure
“H” page 18
6
Paragraph
8 Affidavit page 8
7
12
BLLR 1269
(LC)
8
Paragraph
[12] page 1271
9
[1999]
3 BLLR 268 (LC)
10
1962
(4) SA 531
(A),
at 532 E
11
[1998]
a BALR 38 CCMA.
12
[1997]
6 BLLR 721
(LAC).
13
[2002]
10 BLLR 1031.
14
[2003]
12 BLLR 1274.