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[2012] ZALCJHB 64
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Shibogde v Minister of Safety and Security and Others (JR 3307/09) [2012] ZALCJHB 64 (11 July 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
Of interest to other Judges
case
no: JR 3307/09
In the matter between:
BENNET SHIBOGDE
Applicant
and
MINISTER OF SAFETY AND
SECURITY
First
Respondent
NATIONAL COMMISSIONER, SOUTH
AFRICAN POLICE SERVICES
Second
Respondent
L Nabo (
N.O.
)
Third
Respondent
SAFETY AND SECURITY SECTORAL
BARGAINING COUNCIL
Fourth
Respondent
Heard
: 26 August 2010
Delivered
: 11 July 2012
Summary:
(Review – condonation- effect of withdrawal
equivalent to absolution from the instance – general statement
of financial
hardship not sufficient to explain 3 month delay in
making a fresh referral and condonation application)
JUDGMENT
LAGRANGE, J
Introduction
This is an application to review and set aside a condonation ruling
of the third respondent (‘the arbitrator’) on
8 October
2009, in which he found that the applicant had not shown good cause
for the late referral of his unfair labour practice
dispute to the
bargaining Council. The review application was also filed late and
the applicant has applied for condonation in
that respect also. The
first and second respondents, were the Minister of Safety and
Security and the National Commissioner of
the South African Police
Service (‘the respondent’ or ‘the employer’).
The third and fourth respondents
are the arbitrator and the Safety
and Security Sectoral Bargaining Council (‘the SSSBC’ or
‘the council’),
respectively.
The application for the late referral to the bargaining Council
and the arbitrator’s reasons for refusing condonation
Length of the delay
The history of this matter is slightly unusual. The applicant had
applied for promotion to the rank of Captain at the crime combating
unit based in Soweto. The successful applicant for post number 281
was a female police official, Captain M Mohlale. The applicant
lodged a grievance against the outcome, which was finalised 9 May
2005. He referred an unfair labour practice dispute in terms
of
section 186(2)(a) of the labour relations act 66 of 1995 (‘the
LRA‘) to the bargaining Council on 20 May 2005.
The
arbitration in the matter was finalised in August 2005 and it was
found that the employer had committed an unfair labour
practice and
the applicant should be promoted to the rank of Captain. The
employer took this matter on review and the Labour
Court referred
the matter back to the bargaining Council to be heard before another
arbitrator because the successful candidate
was never cited as a
party in the initial arbitration.
The second arbitration was set down for 23 April 2009. At these
proceedings the employer's representatives produced an employment
equity plan and advised that it had followed this plan when
appointing a female officer to the post. The applicant, who was
represented at the hearing by his attorney, then withdrew his
dispute, but the following day sought to retract this withdrawal
decision by sending a letter to the bargaining Council to that
effect. His representative was advised to submit his request in
writing. After hearing nothing a further letter was sent to the
bargaining Council on 28 May 2009 asking for the matter to be
re-enrolled. The same day the bargaining Council advised that since
the applicant had withdrawn the matter the applicant should
file a
new referral form.
The applicant only referred the dispute afresh some three months
later on 2 September 2009.
The applicant was clearly unsure whether the delay for which he
sought condonation was to be calculated from the date when the
original dispute arose in 2005 or later. The respondent accepted
that the degree of lateness should be calculated from a date
30 days
after the date the matter was set down for arbitration, on the basis
that normally a referral would have to be made within
30 days of the
mediation process being finalised. On the same ground, the
arbitrator accepted that the referral was 100 days
late and that
such a degree of lateness was substantial.
The reasons for the lateness
The applicant said the reason for failing to file the dispute afresh
in good time was because he had financial difficulties and
could not
instruct his attorney properly. The arbitrator rejected this
explanation because he reasoned that the applicant himself
could
have referred it or could have done so through the trade union he
was affiliated to and, in any event, a lawyer was not
required to
make a dispute referral.
At the end of his ruling that the arbitrator concluded that if the
applicant and his attorneys had the intention to re-enroll
the
dispute as early as 24 April 2009, there were no convincing reasons
provided by them to explain why the referral was only
made on 1
September 2009. The arbitrator was of the view that nothing
indicated that the delay was not wilful.
The applicant's prospects of success
The arbitrator found it difficult to assess which party had
reasonable prospects because he said he had not been informed of
the
merits of the dispute, though he noted the previous arbitration
award in favour of the applicant as well as the fact that
the
applicant withdrew the matter after being presented with the
employer's employment equity plan. From his reasoning one may
surmise that the arbitrator was not persuaded that the applicant had
demonstrated that his prospects of success were most probably
better
than those of the respondent.
In his affidavit in support of his condonation application the
applicant relied on the fact that the previous award was in his
favour and that the matter was only referred back to the bargaining
Council on account of non-joinder of the successful applicant.
By
way of trying to explain why he decided to pursue the matter,
despite withdrawing it when the respondent presented the employment
equity plan, the applicant said that on closer scrutiny of the plan
it appeared to him that the document was of questionable
validity
and should be tested under cross-examination. No basis was provided
for this contention. He argued further that, on
the evidence
presented in the original arbitration hearing, employment equity was
held not to have played a role in the promotion.
The following features of the original award in this matter are
worth highlighting. The arbitrator in that matter found that
the
appointment of the successful candidate had been made purely on
points allocated, and that certain points had been allocated
to her
which should not have been. He also found that other points were not
allocated to the applicant which ought to have been.
As a result,
the arbitrator concluded that if the misallocation of points was
corrected the applicant would have received an
overall score of
between 20 and 22 whereas the successful candidate would have only
received a score of 16. Thus the applicant
ought to have succeeded.
The arbitrator acknowledged that the points of the second highest
candidate might also have required adjustment, but was of the
view
that the onus of producing that evidence lay with the respondent if
it wished to dispute that the correct result would have
led to the
applicant being appointed. The arbitrator discounted evidence from
the respondent’s witnesses that greater representivity
had
played a role in the selection process. In this regard, he mentioned
that notes on the documents completed by the panel showed
that the
applicant’s promotion would have enhanced representivity, yet
no similar observations were recorded in respect
of the successful
candidate.
Prejudice to the parties
The arbitrator accepted that both parties would suffer prejudice if
the late referral of the dispute was not condoned. The applicant’s
prejudice would lie in the delay in the matter since 2005 and the
possible unavailability of witnesses who conducted the interviews.
On the other hand, the prejudice to Captain Mohlale who had already
occupied the post for four years would be considerable. On
balance,
the arbitrator concluded that the SAPS and the successful candidate
would suffer greater prejudice than the applicant
if the matter
proceeded.
The review application
Condonation for the late filing of the review
The applicant’s attorney received the condonation ruling on 21
October 2009 and the review application was filed on 8 December
2009. Accordingly the degree of lateness was only six days. The
delay is not completely insignificant in the context of the six-week
period permitted for the filing of review applications. However, it
cannot be said to have resulted in any serious prejudice
to the
respondents, even though the explanation for the delay is weak,
namely that the applicant only consulted with his attorneys
on 18
November 2009 and took more than a week to instruct them to proceed
with the review. In the circumstances, I am inclined
to condone the
late filing of the review application and deal with the merits of
the application fully.
Grounds of review of the arbitrator’s condonation ruling
Condonation
was not necessary
The first ground of review raised by the applicant is that the
arbitrator should not have made a ruling at all because the referral
was not late. It appears that the applicant is of the view that it
was necessary for the arbitrator to make a ruling on the withdrawal
of the dispute and in the absence of a ruling the matter could
simply have been re-enrolled.
The respondent points out that it was the applicant's decision to
withdraw the matter, with the assistance of his legal
representative,
whereas he could simply have asked for the hearing
to be stood down in order to examine the employment equity document
presented
to him. The respondent argues further that, because the
withdrawal of the dispute was his own decision there was nothing on
which
the arbitrator was required to make a finding, and accordingly
there was no need to wait for a ruling before trying to have the
matter re-enrolled as a fresh referral.
Secondly, the respondent points out that the court merely ordered
that the matter should be re-enrolled by the Council within
30 days
of the judgement, and once this had been done, the rules of the
bargaining Council applied and any further referral to
conciliation
– arbitration outside of the 30 day period had to be
accompanied by a condonation application in terms of
those rules.
The justification for the delay
The applicant contended that the arbitrator’s finding that the
delay was unjustified because the applicant did not have
the funds
to instruct his legal representative was irrational because the
arbitrator was well aware that his legal representative
had been
acting previously in the matter and that it was unrealistic in the
circumstances to expect him to have instructed another
person.
The respondent equally asks why the applicant's attorney could not
have taken on the matter on the basis that he would be paid
once the
applicant had the necessary funds in view of the long-standing
relationship the applicant relied on. The respondent
also alludes to
the fact that the applicant’s attorney did perform work for
the applicant after the matter was withdrawn,
yet no explanation was
provided why this work was done but he could not assist the
applicant in completing the referral form.
More importantly, the
respondent points out that the applicant does not explain why he
could not complete the referral form himself
or why he could not
have sought the assistance of a union.
The findings on prospects of success
According to the applicant, the arbitrator ought to have made a
determination on the prospects of success and should have enrolled
the matter to determine this issue which is an important factor in
determining the application. Furthermore, he failed to consider
that
the matter was only referred back to arbitration on the previous
occasion because of the failure to join the successful
candidate as
a party to the proceedings.
The respondent disputes that the arbitrator was under any obligation
to convene an enquiry into the merits, and he was entitled
to
consider the matter on what was presented to him by the parties.
The arbitrator's finding on prejudice
On the arbitrator's findings regarding the prejudice to the parties
of the matter proceeding, the applicant contends that these
were
also irrational because the same witness who testified on behalf of
the second respondent at the initial arbitration proceedings
and who
chaired the interviews was present on 23 April 2009, yet the
arbitrator concluded that the witnesses who conducted the
interviews
might not be readily available. Moreover, the applicant had
indicated in his condonation application that all the
witnesses and
documentary evidence were available and this was not contested by
the respondents. The applicant dismissed as nonsensical
the
arbitrator’s finding that Captain Mohlale would be prejudiced,
because she would still retain her appointment and he
would merely
be promoted in rank if he was successful.
The employer does not make much effort to defend the reasonableness
of the arbitrator's finding on this issue but emphasises
that the
delay was nonetheless unreasonable and therefore the arbitrator's
findings were justifiable.
Evaluation
The need for a condonation application
There is no dispute that on the day the matter was enrolled, the
applicant withdrew the case and then had second thoughts overnight.
Once a matter is withdrawn, any further attempt to revive it is to
be treated as a fresh referral of the dispute. On his own
version,
the applicant withdrew on the legal advice of his attorney, but
changed his mind and advised his attorney to re-enroll
it.
The respondent argues that once the matter was withdrawn without
objection from it and without objection from the arbitrator,
the
matter was finalised. However, I agree with the applicant that the
arbitrator’s assent was required for the withdrawal
of the
matter, for the reasons mentioned below. Nevertheless, since the
arbitrator did not proceed with the matter, it must mean
he
implicitly assented to the withdrawal even if no formal ruling was
recorded by him, so the applicant’s argument that
no
condonation application was necessary is not well grounded on the
facts.
On the question of whether the withdrawal required the arbitrator’s
assent, I see no reason in principle why an arbitrator
should not
have the same discretion which is afforded a judge on whether or not
to allow a matter to be withdrawn.
1
Yet the fact that a matter is withdrawn is not necessarily a bar to
reinstituting proceedings. It seems that the prevailing view
is that
a claim is not determined by the withdrawal of the claim, but the
withdrawal is equivalent to a grant of absolution from
the
instance.
2
It therefore remains open for the applicant to reinstitute
proceedings as the merits of the claim have not been adjudged.
3
The bargaining Council had enrolled the matter for
conciliation-arbitration proceedings on 23 April 2009. That
enrolment was
not a result of a referral made by the applicant but
was a result of the council giving effect to the court order. The
withdrawal
of the matter by the applicant, did not bar him from
referring the matter afresh, but the timing of any subsequent
referral and
the need for condonation cannot be measured simply
against the dispute resolution rules of the bargaining council,
which were
designed for initial referrals that are made by an
employee party, not for referrals made after an applicant has
abandoned the
rehearing ordered by the court.
The enrolment of the matter on 23 May 2009 occurred solely in
consequence of a court order and was not determined by the ordinary
process of referral leading to a set down for con-arb proceedings.
Ordinarily, the requirement for condonation of a late referral
would
be measured against the date on which the dispute had arisen, which
in this case would have been in 2005. But if an enrolment
is ordered
by the court and then the applicant withdraws from the matter, is
the applicant free to approach the council at any
time thereafter to
re-enrol it?
There is no express statutory time limit, nor is there one in the
dispute resolution procedure or rules of the bargaining council
which directly regulates a fresh referral in the factual
circumstances of this case. Where no time limit is stipulated, it is
normally assumed that a reasonable time limit should apply. For
example, in
Radebe v Government of the Republic of SA &
others
1995 (3) SA 787
(N)
at 798A-I it was
held:
“
In the absence of a
statutory limit the Courts have, however, in terms of their inherent
powers to regulate procedure, laid down
that review proceedings have
to be instituted within a reasonable time. There are two principal
reasons for the rule that the Court
should have the power to refuse
to entertain a review at the instance of an aggrieved party who has
been guilty of unreasonable
delay. The first is that unreasonable
delay may cause prejudice to other parties. Harnaker v Minister of
the Interior
1956 (1) SA 372
(C) at 380D; Wolgroeiers Afslaers
(Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A) at
41. The second reason is that it is both desirable and important that
finality should be reached within a reasonable time
in respect of
judicial and administrative decisions. Sampson v SA Railways and
Harbours
1933 CPD 335
at 338; the Wolgroeiers ' case at 41D-E;
cf Kingborough Town Council v Thirwell and Another
1957 (4) SA
533
(N) at 538. Other parties might be prejudiced by unreasonable
delay where the delay is of such a nature that other parties or the
person whose decision is being reviewed have either forgotten
relevant facts, or the recollection of all concerned of the facts
is
not as clear as it would have been if the matter had been brought
within a reasonable time (Francis v Dutch Reformed Church,
George and
Another
1917 CPD 179
at 182; Maseto and Others v Pleskus and
Others)
1917 TPD 366
at 368; the Kingsborough case at 538;
Sampson v SA Railways and Harbours
1933 CPD 152
at 154) or
where the delay is such that those persons who have to depose to
affidavits or give evidence in support of the respondents'
case are
no longer available to give testimony (Sampson v SA Railways and
Harbours
1933 CPD 152
at 154; Schoultz v Voorsitter,
Personeel-Advieskomitee van die Munisipale Raad van George, en 'n
Ander
1983 (4) SA 689
(C) at 698) and, in my view, where
documentary and other forms of evidence are no longer available to
support the respondent's
case....
When the question arises, either because it is raised by an
opposing party or mero motu by the Court, the Court has first to
determine
whether a reasonable time has elapsed prior to the
institution of the proceedings or, to put it differently, whether
there has
been an unreasonable delay on the part of the applicant.
(The Wolgroeiers case at 42A; Setsokosane Busdiens (Edms) Bpk v
Voorsitter,
Nasionale Vervoerkommisie, en 'n Ander
1986 (2) SA
57
(A) at 86B-D). In deciding whether a reasonable time has elapsed,
a Court does not exercise a discretion. The enquiry is a factual
one;
that is, whether the period which has elapsed was, in the light of
the relevant circumstances, reasonable or unreasonable.
(Wolgroeiers
Afslaers case supra at 42C-D; Setsokosane’s case supra at 86E).
If the Court were to arrive at the conclusion
that there has been an
unreasonable delay, the Court should exercise a discretion as to
whether the unreasonable delay should be
condoned.'
Although the arbitrator does not have the inherent powers of a
court, when faced with an application like the present one, an
arbitrator is compelled to decide if condonation is necessary and if
so what period needs to be considered. I think this must
be a power
that is reasonably anciliary to the performance of the arbitrator’s
functions, otherwise, the arbitrator would
be unable to deal with
the referral. Provision for the condonation of late referrals to the
bargaining council is set out in
clause 6 of the council’s
dispute procedure, and the procedure for making an application for
condonation is dealt with
in terms of rule 15 of the dispute
resolution rules. In the case of unfair labour practice disputes
referred to the SSSBC, the
dispute resolution procedure of the
council regulates time periods for referrals. This will be dealt
with in more detail below.
The applicant himself originally believed the period of delay he had
to explain was the period since the original completion
of internal
dispute procedures and his fresh referral of his dispute to
conciliation-arbitration in September 2009. Later, he
adopted the
view that no condonation was necessary because the arbitrator had
not made a formal ruling on the withdrawal of the
matter, therefore
he was free simply to request its re-enrolment. By contrast, the
respondent accepted that 30 days from the
date the matter was set
down on 23 April 2009 would have constituted a reasonable period for
making a fresh referral. The apparent
basis for the respondent
adopting a 30 day period was clause 16 of the bargaining council’s
dispute resolution rules dealing
with conciliation-arbitration,
which the respondent cited, thus:
“
Part 3 CON-ARB 16 how to request con-arb
or arbitration:
......
The
referring party must ....
(a)....
(b)....
(c) if the referral document is served out of time or
4
30 days period the referring party must attach an application for
condonation in accordance with rule 9.
”
(
sic
)
In fact, it appears that the operative version of the rules in 2009
was the version adopted in resolution 2 of 2008 on 1 April
2008 by
the bargaining council. The equivalent provision in the 2008 rules
to clause 16(2)(c) of the previous rules, cited above,
is clause
10(2)(c), which reads:
“
(2) The referring party must –
(a)...
(b)...
(c) If the referral document is served out of time, the referring
party must attach an application for condonation in accordance
with
rule 15.”
The relevant rule for referral of an unfair labour practice dispute
is rule 3.5 of the Dispute Procedure
5
of the bargaining Council Constitution, which reads:
“
3.5 If the dispute is one that is
contemplated in terms of clause 3(1)(c), that is a dispute that in
terms of the Act the Council
must conciliate and arbitrate, it must
be referred to the Council for joint conciliation and arbitration.
Such disputes include
disputes over dismissals for misconduct and incapacity,
unfair
labour practice disputes
(excluding disputes concerning alleged discrimination). In respect of
these disputes the following procedure applies:
(a) A party to a dispute may refer the dispute in writing to the
Secretary for a joint process of joint conciliation and arbitration.
In the referral the referring party must state the facts giving rise
to the dispute.
(b)
The dispute must be referred to the Council within 30 days
after all internal procedures have been exhausted
.”
(emphasis
added)
Thus, in so far as there is any time limit which might be relevant
to a referral in this matter, the 30 day period since the
conclusion
of internal procedures would appear to be most pertinent, but
clearly it does not deal with the specific factual circumstances
which have arisen in this matter. However, I am prepared to accept
that the 30 day period is a reasonable time period in this
instance
because the respondent was willing to concede it and there was some
rationale that it accorded with the period for a
normal referral
save that the starting date was determined by the failure of the
matter to settle on the first occasion it was
set down for
conciliation-arbitration. I cannot say the arbitrator acted
unreasonably in deciding that this was a reasonable
time for the
referral to be made or that condonation was required. It should also
be mentioned that the applicant did not suggest
to the arbitrator
that condonation was not required, so the arbitrator can hardly be
blamed for not addressing this..
Having said that, I do not want to suggest that a 30 day time period
would necessarily be considered appropriate in all cases.
Thus, the
respondent might haveargued that the only valid basis for setting
the matter down afresh was the existence of the court
order and once
the matter had been set down within the period stipulated in the
order then the order had been complied with and
could not be the
foundation for a later referral. In that case, it might have argued
that the period of delay would not start
30 days from the days from
the dateon which the matter was set down in compliance with the
order, but would be the whole period
from the expiry of the original
referral period after the dispute arose. Doubtless, the history of
litigation would explain much
of such a period of delay, but further
delays after the applicant had been afforded a fresh opportunity to
have his matter heard
in consequence of the court order might be
viewed even more seriously.
Nevertheless, on the basis that a thirty day period was a reasonable
period for making a fresh referral, is arbitrator’s
conclusion
that the applicant’s explanation for the delay was
unconvincing, unreasonable or flawed in some other way? The
fact
that he had been represented by the same attorney up to the point of
the withdrawal of the matter, was supposedly ignored
by the
arbitrator. However, the arbitrator reasoned that legal expertise
was not required to make a fresh referral. Implicitly,
he was saying
that the primary reason given by the applicant for failing to make
the referral, namely that he could not pay his
attorney, was simply
not a good enough reason to delay for three months, because an
attorney’s expertise was not required.
Thus, the fact that his
previous attorney would not help him was not of any relevance to
this issue.
It is true that the applicant was initially quick to try and reverse
his withdrawal of the matter on 24 April 2009. On his instruction,
his attorney wrote the letter seeking to re-enrol the matter the day
after he withdrew it. When the council did not respond,
there was a
gap of nearly a month before the next letter was written, again by
applicant’s attorney. Eventually a reply
was received on 28
May 2009. In it the council made it clear what it expected of the
applicant, yet despite having written three
letters on behalf of the
applicant, it was at that very point that the applicant’s
attorney was no longer prepared to do
further work on the matter. At
least that is the applicant’s version, as his attorney never
filed a corroborating affidavit
either in the review application or
in the condonation application, which in itself a significant
concern given the nature of
the applicant’s explanation for
the delay.
Thus, the applicant took no steps from the end of May to the end of
August 2009 to advance his case, even though it only involved
completing a referral form and filing the condonation application.
There is no evidence that he asked the bargaining council for
guidance in this regard, nor did he even write a letter to the
respondent and the council explaining that he still intended to
pursue his case, but was hampered by lack of funds. There was
also
no explanation advanced why the applicant’s lack of funds only
became a problem on 28 May 2009 apart from a statement
that he
received a cost account, in an unspecified amount, from his
attorney, and that he was willing to give the matter up owing
to the
exhaustion of his finances. How he happened to overcome this
handicap at the end of August, other than stating that he
managed to
obtain a portion (also unspecified) of the funds required, is not
explained. In this regard, it must also be borne
in mind that the
applicant was not unemployed during this period. After nothing
further happened in June and July, it would not
have been
unreasonable of the respondent to have believed the applicant had
decided to abandon the matter.
In the circumstances, I do not think the arbitrator can be said to
have acted irrationally in finding that the explanation for
the
delay between 23 May and 2 September 2009 was not convincing on the
evidence available to him. Similarly, his finding that
the failure
to pursue the matter for three months was wilful, is not one that no
reasonable arbitrator could have arrived at.
On the question of the arbitrator’s failure to make a finding
on the prospects of success, the applicant is on stronger
ground. It
seems to me that the arbitrator reached the conclusion that the
prospects of success and failure were evenly balanced,
but he did
not have to find that the applicant was more likely to succeed than
fail. All he was required to determine was that
he had some
prospects of success: he did not have to show on a balance of
probabilities that he ought to succeed.
6
However, he was not required to conduct a hearing to determine this
and was entitled to make a finding on the material before
him.
The two key factors to consider in the applicant’s favour were
that the applicant had succeeded in the first arbitration
and the
arbitrator had found that employment equity had not been a
significant consideration in determining the successful candidate.
Against that was the employer’s introduction of new evidence
of a policy of employment equity which was not presented to
the
first arbitrator. That might well have changed the picture in the
second hearing and clearly was the reason why the applicant
initially withdrew when it was tabled.Had the arbitrator applied the
correct test in evaluating the prospects of success, he
might well
have concluded that this aspect favoured the applicant.
On the question of prejudice, the applicant’s points are also
well made, and it appears the arbitrator did not apply his
mind
properly to the issue in reaching his conclusions. Given the relief
sought, there was no prejudice the successful candidate
would have
suffered because she would not have been removed from her post if
the applicant was ultimately successful. The real
prejudice to the
respondent would have been having to pay two salaries at the higher
rank instead of one. Secondly, it appears
that the arbitrator might
have ignored the presence of the first respondent’s key
witness. But even if he had not been
aware of this, it seems his
remarks on the availability of witnesses were speculative rather
than based on evidence.
Conclusion
In summary, I do not think the arbitrator’s findings on the
matter of the applicant’s delay were ones a reasonable
arbitrator could not have reached, and I do not think he ignored
relevant evidence when deciding that issue. However, he clearly
ignored relevant factors when considering the question of prejudice
and the prospects of success, either because he misunderstood
the
issues he had to consider or how those questions are to be
evaluated. Accordingly, the findings of the arbitrator on these
issues must be set aside and depending on an overall re-evaluation
of the condonation application his ruling to dismiss the condonation
application could also be set aside. However, for the reasons which
follow, on a re-consideration of the condonation application,
his
overall finding must be upheld. As the court has all the same
evidence before it as the arbitrator did, there is no reason
why, in
the circumstances, the court cannot reconsider the merits of the
issues of prospects of success and prejudice and consequentially
whether this should alter the arbitrator’s decision to refuse
condonation..
It is clear that because he did not make a finding on the prospects
of success, the arbitrator did not give any weight to this
issue
when deciding to dismiss the condonation application. Had he done
so, it is more likely he would have been compelled to
conclude that
the applicant did have some prospect of success. So too on the issue
of prejudice, he would only have had to weigh
up the prejudice to
the applicant if he was denied condonation against the prejudice to
the respondent of having to go through
another arbitration a long
time after the initial hearing. On the respondent’s own
version it will have a stronger case
to make because of the fresh
evidence it wishes to raise about its employment equity policy which
was not canvassed in the initial
arbitration. If that is so, it
cannot be said it would obviously be prejudiced by a further
hearing, whereas refusing condonation
would end the applicant’s
claim.
In making an overall assessment of the case for condonation, the
central issue is whether the merits of the questions of prejudice
and the prospects of success outweigh the long delay of three months
and the unconvincing explanation for it. On the applicant’s
own account he was willing to give up the matter at the end of May
2009 owing to his lack of finances, and it appears that he
only
decided to renew his pursuit of his claim when he inexplicably came
into funds in August some three months later.
Effectively, the applicant is asking that his inaction over a
significant period due to a rather sketchy account of financial
hardship should not deprive him of his claim, despite having
deliberately chosen, with legal advice to hand, to abandon the
opportunity afforded by the review judgment to have his case
re-heard on 23 April 2010. It was his own decision to withdraw, when
no obstacle stood in the way of the re-hearing proceeding that
precipitated the situation he now wants to extricate himself from.
Yet, from 28 May 2009 onwards he made no mention of the reason he
was not making a fresh referral, either to the bargaining Council
or
to the first respondent, until he filed his condonation application
on 2 September 2009.
Notwithstanding that he has some prospect of success and that the
question of prejudice may favour him, I do not think that his
alleged inability to fund further litigation, which was not properly
substantiated, justified him simply biding his time on the
re-referral until such time as his finances improved. This is
particularly so where he was the author of the need for a fresh
referral and where he made no alternative effort to obtain other
assistance with the referral and condonation application, for
which
legal representation was not a pre-requisite.
In the circumstances, despite setting aside the arbitrator’s
findings on the issues of prejudice and prospects of success,
the
length of delay and the failure to adequately justify it are not
outweighed by those factors and I am persuaded no condonation
should
be granted even on a fresh consideration of all the relevant
factors, taking into account the substituted findings above.
On the question of costs, the applicant was partially successful and
it would be just and equitable for both parties to bear
their own
costs in the matter.
Order
The findings of the arbitrator on 8 October 2009 on the issues of
the prejudice suffered by the parties in the event of the
condonation being granted and the applicant’s prospects of
success are reviewed and set aside, and are substituted with
findings that the applicant had some prospect of success and the
relative prejudice to the parties of the matter being reheard
or
not, on balance, favoured the applicant.
The application to review and set aside the condonation ruling in
respect of the late re-referral of the applicant’s unfair
labour practice dispute is dismissed.
Each party must bear their own costs.
_______________________
R LAGRANGE, J
Judge of the Labour Court of South Africa
APPEARANCES
FOR THE APPLICANT: J M Gouws of Johan Gouws Attorneys
FOR THE FIRST RESPONDENT: T F Mathibedi instructed by the State
Attorney
1
In
high court proceedings it has been held that withdrawal of an action
is not simply within the discretion of an applicant once
litis
contestatio
has been reached: the court has a discretion whether
to allow the matter to be withdrawn. See
Karroo Meat Exchange
Ltd v Mtwazi
1967 (3) SA 356
(C
), per Diemont, J and
Watermeyer, J at 359F-360AH. See also
Vena v Vena &
another
2010 (2) SA 248
(ECP)
at 632I-633D.
2
Kaplan
v Dunell Ebden and Co
1924 EDL 91
at 93 where
Van der Riet J stated that the effect of a withdrawal of a case by a
plaintiff was that:
“
the case disappears from
the roll
as
though absolution from the instance had been given. In my view a
plaintiff is not at any time debarred from withdrawing a case
and if
this is done by him even after set-down the Court no longer has the
action before it.
”
Also see
Irish & Co (now Irish & Menell
Rosenberg Inc) v Kritzas
1992 (2) SA 623
(W)
, per
Levy AJ, at 633B-D:
“
There can be no doubt
that, in the words of Lord Erskine LC in Woode v Leake
(1806) 2 Ves
412
, respondent's withdrawal was 'with a view to prevent justice and
defeat the object of the reference', but it certainly cannot be
said
that respondent abandoned his claims or that, in the absence of
evidence, applicant was entitled to anything more than an
award of
absolution from the instance which would of itself then permit
the re-opening by respondent of the disputes between
applicant and
respondent. Cf Kruger v Die Sekretaris van Binnelandse Inkomste
1970
(4) SA 687 (A)
.
The consequence of the award of absolution from the instance is that
respondent would be entitled to raise the same issues again
in
whatever forum might be open to him in order to achieve the effect
that this arbitration was intended to achieve.
“
3
See
in this regard
Sparks v Sparks
1998 (4) SA 714
(W)
,
an appeal judgment by a full bench of the Witwatersrand Division of
the High Court, at 721:
“
As pointed out in Purchase
v Purchase
1960
(3) SA 383 (D)
at 385 dismissal and refusal of an application
have the same effect, namely a decision in favour of the respondent.
The equivalent
of absolution from the instance would be that no
order is made or that leave is granted to apply again on the same
papers.
That was certainly not the case in this judgment.
There was a decision against the respondent, an order was indeed
made and the
reasons given therefor.
In Cordiglia v Watson
1987
(3) SA 685
(C)
the Court of appeal found that the magistrate who
had stated '. . . the court cannot come to the conclusion either
that the scales
weigh in favour of the complainant nor that
the scales weigh in favour of the defendant in this matter' and
who then invited
further investigation by the maintenance officer
had '. . . clearly intended (the order) to be the equivalent of an
order for
absolution . . .' (at 688A). An order of absolution is
ordinarily not decisive of the issue raised, it decides nothing for
or
against either party”
(footnotes omitted)
4
“
or”
might be a typographical error and should have been “of”
even though it would still not be very grammatical.
5
SSSBC
resolution 02/2001 dated 13 February 2001, amending Schedule 2 of
the bargaining council’s constitution.
6
See,
for example,
Gaoshubelwe & others v Pie Man’s Pantry
(Pty) Ltd
(2009) 30
ILJ
347 (LC)
at 353,[27].