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[2012] ZALCJHB 63
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Theledi v Saficon Industrial Equipment (Pty) Ltd (JS 812/09) [2012] ZALCJHB 63 (10 July 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JS 812/09
In the matter between:
PETER THELEDI
…..........................................................................................
Applicant
and
SAFICON INDUSTRIAL EQUIPMENT (PTY) LTD
…..................................
Respondent
Heard: 22 December 2011
Delivered: 10 July 2012
Summary: -application for condonation for the late filing of
statement of claim- degree of lateness reasonable- condonation
granted.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
JULY A.J
[1] This is an application for condonation for the late filing of the
statement of claim by the applicant.
[2] The following facts are common cause-
that the applicant referred a dispute to the South African Local
Government Bargaining Council ("the Bargaining Council"),
as one of unfair dismissal on 30 October 2008;
that the dispute remained unresolved at conciliation on 26 November
2008, and that no certificate of outcome was issued;
that the applicant referred the dispute for arbitration to the
Bargaining Council;
that the arbitration was set down on 14 January 2009;
that prior to the arbitration, the applicant withdrew the matter
from the Bargaining Council; and
that on 17 August 2008, the applicant instituted proceedings before
this Court.
[3] It is also common cause that the statement of claim by the
applicant was filed late. In terms of Directive 3 of this Court,
the
condonation application must be determined first before the matter is
set down for trial.
[4] In terms of section191(5) of the Labour Relations Act (“LRA”),
1
after a dispute has been certified by the Commissioner as unresolved–
‘
(a) ….
the employee may refer the
dispute to the Labour Court for adjudication if the employee has
alleged that the reason for dismissal
is –
automatically unfair;
based on the employer’s
operational requirements;
the employee’s
participation in a strike that does not comply with the provisions
of Chapter IV; or
because the employee refused
to join, was refused membership of or was expelled from a trade
union party to a closed shop agreement
.’
[5] Section 191(11) of the LRA provides–
‘
(a)
The referral, in terms of subsection (5)(b), 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 commissioner has certified that
the dispute remains unresolved.’
[6] It is submitted that the applicant withdrew the matter from the
Bargaining Council. It is not clear when this was done. What
is clear
though is that it was before 14 January 2008 which was the date when
the arbitration was scheduled to take place.
[7] The applicant did not refer the matter to this Court within the
90 days as prescribed in section 191 of the LRA. The 90 days
from the
date of the issuance of the certificate lapsed on 26 February 2009.
Accordingly, the applicant referred the dispute to
this Court five
months and three weeks late.
[8] In terms of section 191(11)(b) of the LRA, this Court may
condone, on good cause shown, “non-observance” of the
timeframe.
[9] This Court has discretion to determine whether to condone the
late referral of the dispute. This discretion by the Court has
to be
exercised judicially. In exercising such discretion, there are
factors that this Court must take into account. The factors
are
stated in the case of
Melane v Santam Insurance Co. Ltd
2
as (a) degree of lateness, (b) the explanation therefor, (c) the
prospects of success and (d) the importance of this case.
[10] In the recent decision of the Constitutional Court in the matter
of
MS v SC Centre for Child Law AS Amicus (Curiae)
3
,
the Court held-
‘
The
test for determining if condonation should be granted is whether it
is in the interest of justice. Factors relevant to this
inquiry
including but are not limited to the extent and cause of the delay;
the prejudice to other litigants, the reasonableness
of the
explanation for the delay, the significance of the issues to be
decided …and the prospects of success. None of these
factors
are decisive. The inquiry is one of weighing each against the others
in order to determine where the interests of justice
lie.’
[Footnote omitted]
[11] With regard the degree of lateness, as already stated, the
applicant was five months and three weeks late in referring this
dispute to this Court. However, although, the explanation given by
the applicant for this delay is not satisfactory, in my view,
the
five months and three weeks delay is not so long that the matter
cannot be entertained by this Court. Also given the circumstances
under which the applicant was dismissed, it is in the interests of
justice that this late referral be condoned. I am aware of a
plethora
of cases decided by this Court that seek to suggest that a failure to
give a satisfactory explanation should result in
the refusal of the
condonation. Some cases even state that it is the end of enquiry.
That is not my understanding of the
Melane
decision. The
Melane
decision is very clear that the factors are
interrelated. Although I am not satisfied with the explanation for
the delay, it is
however, in my view, not the end of the enquiry.
Consistent with the principle that none of the factors are decisive
the failure
to give a satisfactory explanation for the delay must be
weighed with other factors. In other words, the explanation factor is
not a decisive factor.
[12] Having regard to the circumstances that led to the dismissal, I
am inclined to grant condonation. Although I am not making
any
finding on the merits, in my view, the applicant has prospects of
success.
[13] I have also considered that the respondent is not going to
suffer any prejudice by this application being granted; instead
the
applicant will suffer more prejudice if his case is not heard by this
Court.
[14] In light of the above, I make the following order –
Application for condonation brought by the applicant is granted;
Late filing of the Statement of Case instituted by the applicant
dated 17 August 2009 is condoned; and
No order as to costs.
___________________
JULY AJ
Acting Judge of the Labour Court
APPEARANCES:
FOR THE APPLICANT: Mohlaba and Moshoana Inc Attorneys
FOR THE RESPONDENT: Schoeman and Associates Attorneys
1
66
of 1995.
2
1962(4)
SA 531(A)
3
2011
(2) SACR 88
para 15 also reported as
S v S
2011 (7) BCLR 740
(CC).