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[2012] ZALCJHB 183
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Coca-Cola Fortune (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR 1014/2008) [2012] ZALCJHB 183 (22 June 2012)
5
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 1014/2008
In the matter between:
COCA-COLA
FORTUNE (PTY) LTD
...............................................................
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
...........................................................................
First
Respondent
MOHLOMELELE
CHRISTOPHER MELLO N.O
............................
Second
Respondent
MARIA
JANE MOGAILA
...................................................................
Third
Respondent
Heard :22 June 2012
Order : 22 June 2012
Summary : Review Application. Application for Condonation
dismissed with costs.
judgment-reasons for order
AC BASSON J
Introduction
[1] This was an application to review and set aside an arbitration
award in terms of which the second respondent (“the
commissioner”)
found the dismissal of the third respondent (Ms
Mogaila - hereinafter referred to as “the respondent”) to
be substantively
unfair but procedurally fair. The applicant was
ordered to reinstate the respondent. The review application served
before this
Court on 22 June 2012. I dismissed the condonation
application for the late filing of the record. I should point out
that I have
also considered the merits of the review in the event
this Court ought to have granted condonation for the late filing of
the record.
In respect of the review application I have concluded
that the review has no merits and that it falls to be dismissed on
that basis
too.
Application for
condonation for the late filing of the record
[2] In her opposing affidavit, the respondent raised the point that
the applicant has failed to file its notice in terms of Rule
7A(6) of
the Rules
1
and
that the respondent has only filed its notice in terms of Rule 7A(8)
on 11 May 2010 which is approximately 16 months after the
first
respondent (the CCMA) has availed the record in respect of the
arbitration proceedings. It further appears from the papers
that the
commissioner issued the written award on 29 April 2008. The CCMA has
availed to record in December 2008. Only on 11 May
2010
(approximately 16 months later) did the applicant file its notice in
terms of Rule 7A(8) of the Rules.
[3] It is not clear from the papers as to when exactly didthe
applicant file the review application as the Notice of Motion
accompanying
the review application does not display a Court stamp
confirming service. The service affidavit attached to the founding
affidavit,
however, states that the review application was served by
registered mail in June 2008. The date of the registered slip is
recorded
as 11 June 2008.
[4] The respondent was dismissed as far back as 26 November 2007.
This matter only served before this Court near the end of 2012.
This
is a substantial delay in reaching finality in this matter and it
appears from the papers that the applicant is solely to
blame for
this unacceptable delay in bringing finality to this matter.
[5] From the papers it appears that the review application was served
on the offices of the respondent’s former attorneys
on 9 June
2008. As already pointed out, the CCMA duly availed the arbitration
record in December 2008. From that time the applicant
apparently did
nothing to expedite the transcript of the record. Furthermore, from
August 2009 until approximately February 2010
the respondent’s
attorneys unsuccessfully communicated with the applicant’s
attorneys in respect of the record: As
early as 17 August 2009 the
respondent’s attorneys explicitly recorded that the record had
already been filed by the CCMA
and that they (the respondent’s
attorneys) were awaiting the Rule 7A(8)(a) or (b) notice.
Notwithstanding these letters,
the applicant failed to avail the
record to the respondent expeditiously and failed to formally file a
notice in terms of Rule
7A(6) of the Labour Relations Act
2
.
In fact, the applicant only filed its notice in terms of Rule 7A(8)
16 months after the record was made available by the CCMA.
[6] What makes matters worse for the applicant is the fact that it
only filed the application for condonation (for the late filing
of
the Rule 7A(8) notice) on 11 June 2012 – approximately three
days before the hearing of the review application.
[7] The applicant has also never formally filed its notice in terms
of Rule 7A(6) of the Rules. Furthermore, despite the fact that
the
respondent had alerted the applicant as early as 25 May 2010 that the
record had been filed late, the applicant waited until
3 days before
the hearing before filling an application for condonation.
[8] I have considered the application for condonation. The affidavit
contains a feeble explanation of the fact that a secretary
incorrectly informed the respondent’s attorneys that a copy of
the transcript will be made available to the respondents upon
tendering the costs thereof. I do not understand how this can explain
the length of the delay. Furthermore, the applicant explains
that the
matter had previously been dealt with by a certain Ms Murray who has
since left the firm and when the matter was taken
over by the
deponent of the condonation application he was not made aware of a
pending review application. Again this is an unacceptable
explanation
for the delay. A further explanation tendered is the fact that the
file was misplaced. All of these reasons reflect
on the competence of
the applicant’s attorneys and does not constitute a proper or
reasonable explanation for the delay.
I am further of the view that
there exists no reason why the respondent should be denied justice as
a result of the negligence
of the applicant’s attorneys.
Furthermore, our law subscribes to the doctrine of
vigilantibus
non dormientibus lex subvenit
3
.
This established principle has been accepted by our Courts in
numerous decisions. Furthermore, the applicant did not tender any
explanation whatsoever to explain why the condonation application was
not filed timeously.
[9] The applicant and its attorneys have displayed a flagrant
disregard of the procedures of this Court and should therefore not
be
assisted by this Court to the detriment of the respondent. The
application for condonation is therefore dismissed with costs.
I
should also add that the applicant has not even addressed the
prospects of success in the application for condonation but merely
referred to the review application. This is not sufficient. The
applicant must make out a case in respect of the prospects in the
founding affidavit. In any event I am of the view that the prospects
are irrelevant in light of the fact that the applicant has
not
tendered a reasonable explanation for the delay.
Merits of the review
application
[10] I have also considered the award and the merits thereof
notwithstanding the fact that I am of the view that the matter should
be dismissed for the aforesaid reasons.
[11] In respect of the review application I am not persuaded that the
applicant has made out a case for the relief sought. I am
persuaded
that the commissioner correctly evaluated the evidence in coming to a
conclusion and that the conclusion reached by the
commissioner is
reasonable. It is clear that the commissioner was alive to the facts
and that he has properly applied his mind.
The applicant states that
the commissioner did not take into account the evidence of a certain
Erasmus who testified that the applicant
had apologised to Moleme
(the victim) in his presence for slapping her (the victim) on 27
October 2007. This is completely wrong.
Erasmus only stated that
“Jane apologised to Pam for the incident that had happened”.
The evidence was not that she
had apologised for an assault.
Furthermore, if regard is had to page 76 of the transcript where the
victim testified that the respondent
did not mention that she had
slapped her. The applicant further offered no explanation for not
having called the one person (Mr
Hendrik Seakamela) who saw the
victim after the assault. The applicant contends that the
commissioner should not have drawn a negative
inference from this
fact. This is not correct if regard is had to the award. The
commissioner did not draw a negative inference
from this fact. What
the commissioner stated was that because Seakamela did not testify,
no other evidence was placed before the
commissioner to consider.
[12] I have considered the award and I am in agreement with the
conclusion reached by the commissioner that there was no evidence
of
the alleged assault. The conclusion is therefore reasonable and I can
find no reason to interfere neither with the decision
nor with the
conclusions in respect of sanction.
[13] In the event the application for condonation is dismissed with
costs.
__________________
AC Basson J.
Judge of the Labour Court
APPEARANCES
For the Applicant :
Verveen Attorneys
For the Third Respondent
: Lombard Attorneys
1
Rules
of the Labour Court
2
Act
66 of 1995.
3
Mkhize
v Tanker Services (Pty) Ltd
(1993) 14 ILJ 688 (LAC: