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[2012] ZALCJHB 172
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Sibiya v Commission for Conciliation Mediation and Arbitration and Others (JR838/2011) [2012] ZALCJHB 172 (6 December 2012)
Not
Reportable
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR838/2011
In the matter between:
T D SIBIYA
......................................................................................................
Applicant
and
CCMA MPUMALANGA
......................................................................
First
Respondent
GLEN CORMACK
N.O
..................................................................
Second
Respondent
SOUTH AFRICAN REVENUE
SERVICES
.......................................
Third
Respondent
Heard:
01 November 2012
Delivered: 06 December
2012
Summary: Review
application. Condonation for the late filing of review.
JUDGMENT
MOLAHLEHI, J
Introduction
This is an application
to review and set aside the arbitration award made under case number
MP 4958-09 dated 5 August 2010, in
terms of which the second
respondent (the Commissioner) found the dismissal of the applicant
to have been unfair and ordered
compensation. In the review
application, the applicant challenges the award of the Commissioner
on the basis that, having found
the dismissal to have been
substantively unfair, the Commissioner ought to have ordered that
she be reinstated.
The applicant has also
applied for condonation for the late filing of a review application.
The third respondent has opposed the
condonation application.
The respondent was also
late in filing the answering affidavit for which an application for
condonation has been filed. Having
regard to the principles
discussed later in this judgment relating to consideration of
condonation, I am satisfied that the respondent
has made out a case
for condonation of the late filing of the answering affidavit.
Background facts
The applicant, who at
the time of her dismissal was employed as a member of the
anti-smuggling unit by the respondent was responsible
for customs
control at the Lebombo border post. She was charged and dismissed
for the misconduct concerning the allegation of
40 cartons of
smuggled cigarettes that had been seized and handed in for
safekeeping.
The evidence of the
various witnesses that testified on behalf of both parties
respectively had been summarised by the Commissioner
in his
arbitration award and I therefore do not deem it necessary to repeat
the same in this judgment, in particular, having
regard to the fact
that the issue in the review application relates only to the
question of whether the Commissioner ought to
have ordered
reinstatement.
The grounds of review
and the arbitration award
The essence of the
applicant's challenge in this application is that the arbitration
award is not justifiable nor reasonable considering
the evidence
which was placed before the Commissioner. This as mentioned earlier
relates to the failure by the Commissioner to
order reinstatement.
The Commissioner in his
arbitration award after summarising the evidence which was before
him finds that the dismissal of the
applicant by the respondent on
the charge of theft and dishonesty was substantively unfair and as
stated earlier ordered the
respondent to compensate her in the
amount equivalent to 6 months salary.
In her explanation for
the delay, the applicant blames her previous attorneys in filing the
review application outside the prescribed
period and says that the
review application was six months and three weeks late. She says
that when she enquired from her erstwhile
attorney about progress in
the matter, she was informed that he was waiting for an opinion from
an advocate. She further stated
that it was only in February 2011
that the attorney informed her that he was not able to obtain the
legal opinion as promised.
According to her, the attorney further
advised that she had no prospects of succeeding with the matter.
The applicant then
approached the current attorneys of record who according to her
"immediately launched this application."
The applicant contends
in the condonation application that this matter is important because
it would clear her name and ‘I
will again be marketable in the
workplaces across the Republic and elsewhere.’
The third respondent in
its answering affidavit disputes the period of the delay as stated
in the founding affidavit of the applicant.
The respondent contends
that the delay is seven months and two weeks and is therefore
excessive when regard is had to the explanation
tendered by the
applicant.
Principles governing
condonation
The principles governing
the requirement for granting or refusal of condonation are well
established in our law. In terms of these
principles the court or an
arbitrator has a discretion which is to be exercised judicially
after taking into account all the
facts before it. The factors which
the court takes into consideration in assessing whether or not to
grant condonation are:
(a) the degree of
lateness or non compliance with the prescribed time frame,
(b) the explanation for
the lateness or the failure to comply with time frames,
(c) prospects of success
or
bona fide
defense in the main case;
(d) the importance of the
case,
(e) the respondent’s
interest in the finality of the judgment,
(f)
the
convenience of the court; and
(g)
avoidance
of unnecessary delay in the administration of justice. See
Foster
v Stewart Scott Inc
1
These factors are not
individually decisive but are interrelated and must be weighed
against each other. In weighing these factors
for instance, a good
explanation for the lateness may assist the applicant in
compensating for weak prospects of success. Similarly
strong
prospects of success may compensate the inadequate explanation and
the long delay.
In an
application for condonation, good cause is shown by the applicant
giving an explanation that shows how and why the default
occurred.
There is authority that the court could decline the granting of
condonation if it appears that the default was wilful
or was due to
gross negligence on the part of the applicant. In fact,
the
court could on this ground alone decline to grant an indulgence to
the applicant.
Prospects
of success or
bona
fide
defence
on the other hand mean that all what needs to be determined is the
likelihood or chance of success when the main case
is heard.
See
Saraiva
Construction (Pty) Ltd v Zulu Electrical and Engineering Wholesalers
(Pty) Ltd
2
and
Chetty
v Law Society
.
3
Another
important principle which the courts repeatedly stated 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. See
Melanie
v Santam Insurance Co Ltd.
4
It
has also been held by the courts that the applicant should bring the
application for condonation as soon as it becomes aware
of the
lateness of its case.
Proper explanation
entails an explaining for each period of the delay and the
disclosure of all the details relevant to the delay.
And more
importantly the applicant needs to take the court into his or her
confidence.
Evaluation
In the present instance,
it is clear that the applicant has failed to provide a reasonable
and satisfactory explanation. In addition,
the applicant has failed
to take the court in her confidence to explain in full all the
aspects related to the period of the
delay. Reading the applicant’s
founding and replying affidavit, the impression that stands out
therefrom is that the attitude
of the applicant is that the
condonation is there for the taking.
The applicant does not
explain the period between February 2011, when her erstwhile
attorney advised her that she did not have
prospects of succeeding
with her case and May 2011 when the review application was filed.
The applicant has also failed to explain
the gap between 15 April
2011 when the notice of motion was signed by her attorneys of record
and her signing the founding affidavit
on 28 April 2011.
The applicant blames her
erstwhile attorneys for the delay. She does not however indicate the
name of those attorneys and also
the dates that she approached them
to enquire about progress of her case. Furthermore, the applicant
says that she went back
to her union and was referred to the current
attorneys of record. There is no indication which union advised her
to approach
the current attorneys of record nor is there any
indication as to the date that the union advised her to approach the
current
attorneys of record.
In light of the above, I
find that the applicant has failed to present credible evidence to
make out a case for condonation for
the late filing of the review
application. I further find that the applicant has failed to provide
evidence as to the specific
dates relating to the material aspects
of her condonation application which would have assisted the court
in arriving at a fair
and just decision in adjudicating the
condonation application.
Whilst the applicant
blames her erstwhile attorney for the delay as indicated above, she
has not made out a case proving that
the delay was as result of the
attorneys. As indicated earlier not only has she failed to specify
who the attorneys are but she
has also failed to provide the dates
which are critical in relation to consulting with them and obtaining
the advice about the
prospects of success.
In conclusion and in the
circumstances of this case, it seems to me that the only reasonable
finding to make is that the delay
was excessive and the explanation,
if it exists at all, was so poor that I do not deem it necessary to
consider the prospects
of success.
Order
In the premises,
the application to
review the arbitration award made under case number MP 495809 dated
5 August 2010 is dismissed with costs.
_____________
Molahlehi J
Judge of the Labour Court
of South Africa
APPEARANCES:
For the Applicant: Mr
Shongwe of Shongwe Attorneys
For the Third Respondent:
Advocate S Collet
Instructed by: Eversheds
Attorneys
1
1997
18 ILJ 367 (LAC).
2
1975
(1) SA 612
(D) at 613C-G.
3
1985
(2) SA 756
(A) at 765A-C.
4
1962
(4) SA 531
(A) at 532C-F.