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[2012] ZALCPE 11
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Qandana v National Bargaining Council for the Road Freight Industry and Others (P331/11) [2012] ZALCPE 11 (19 November 2012)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Reportable
Case No: P331/11
In the matter between:-
MTHETHELELI EBENEZER QANDANA
................................................................
Applicant
and
NATIONAL BARGAINING COUNCIL
FOR THE ROAD FREIGHT INDUSTRY
....................................................
First
Respondent
COMMISSIONER QUEENDY GUNGUBELE
.......................................
Second Respondent
FUELOGIC (PTY) LTD
..............................................................................
Third
Respondent
Heard: 5 JUNE 2012
Delivered: 19 NOVEMBER 2012
Summary: Review application in
terms of section 158(1)(g) must be brought within
reasonable time, when they are
delayed the applicant needs to file a
Condonation application for the
Court to determine whether they have
they have been brought within
reasonable time.
Review application in terms of
section 158(1)(g) of the LRA-condonation
_____________________________________________________________________
JUDGMENT
LALLIE, J
Introduction:
The applicant launched this review
application in terms of section 158(1)(g) of the Labour Relations
Act 66 of 1995 (the LRA)
for an order reviewing and setting aside an
arbitration ruling of the second respondent (the arbitrator).
Condonation
The arbitration ruling which is the
subject matter of the review application is dated 4 March 2011 and
this application was brought
on 15 July 2011. In the answering
affidavit, the third respondent raised a point
in limine
that
this court lacks jurisdiction to entertain this review application
on the grounds that the application has been brought
outside the
period contemplated in the LRA. In the replying affidavit, the
applicant submitted that no specific period applies
to section
158(1)(g) reviews. He, however, undertook to file a condonation
application in response to the point
in limine
.
The applicant did not file the
condonation application and one was moved on his behalf from the bar
just before arguing the review
application. It was argued on behalf
of the applicant that, although the arbitration ruling is dated 4
March 2011, he received
it on 27 May 2011. He immediately approached
the offices of the Legal Aid for assistance. He could be assisted on
11 July 2011
and the review application was filed on 3 August 2011.
It was also argued that there is no proof of the date on which the
applicant
received the arbitration ruling and that he will suffer
prejudice should this application not be granted. No reasons could
be
furnished for the office to the Legal Aid’s inability to
contact the applicant since August 2011.
It was argued on behalf of the third
respondent that the arbitration ruling was dispatched to the
applicant’s elected address
on 29 March 2011, but he failed to
pursue this matter diligently. The third respondent sought the
dismissal of this application,
with costs, also on the grounds that
the applicant cannot be found and his application is not supported
by the facts which will
allow it to succeed.
No time period has
been set for the filing of review application brought in terms of
section 158(1)(g). They have to be filed
within a reasona ble time.
In determining reasonable time, the courts have used the six weeks
period for filing review application
in section 145 of the LRA as a
bench mark.
1
In
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v NUM and Others
2
the court made the
following observation:
‘…
a
prerequisite to granting the substantive relief sought was the
timeous bringing of an application for condonation. Put otherwise:
without granting condonation a court may not grant substantive
relief.’
The same principle applies in this
matter. Bringing the review application within a reasonable time
constitutes the required jurisdictional
fact which must exist before
this court can consider the review application.
The condonation
application was necessary as it would have placed this court in a
position to determine whether the review was
brought within a
reasonable time. The Legal Aid office did its best to assist the
applicant. It has been unable to contact the
applicant since August
2011. Without the applicant’s availability and co-operation,
it was impossible for the Legal Aid
office to file the required
condonation application. There is a duty on the applicant to
prosecute this matter diligently and
he has failed to do so. The
application for condonation moved on behalf of the applicant lacked
vital allegations. The reason
for the delay could not be furnished.
The delay from the day after the six weeks period from 29 March 2011
is not explained.
The period of delay is substantial and in the
absence of its reasonable explanation it is unnecessary to consider
prospects of
success.
3
In the
circumstances, the application for condonation cannot succeed.
Costs
The third respondent sought a cost
order against the applicant. The applicant was assisted by
Clientelle. His policy lapsed. The
office of the Legal Aid took
over. The circumstances of his unavailability are unknown and, in
the circumstances, I am not persuaded
to grant a cost order against
him.
Order
In the premises, the following order
is made:
The condonation application is
dismissed;
The review application is dismissed;
No order is made as to costs.
____________
Lallie J
Judge of the Labour Court
Appearances:
For the Applicant: Mrs. Van Staden of
the Legal Aid Office
For the Third Respondent: Advocate
Pillay
Instructed by: Yusuf Nagdee Attorneys
1
In
this regard see:
Fidelity Guard
Holdings (Pty) Ltd v Epstein NO and Others
[2000]
12 BLLR 1389
(LAC) and
JDG Trading
(Pty) Ltd t/a Bradlow Furnishers v Laka NO and Others
[2001] 3 BLLR 294
(LAC).
2
[2001]
3 BLLR 305
(LAC)
3
In
this regard see:
Miya v Putco Ltd
(DA17/98, LAC) unreported
and
PPWAWU and 2 Others v AF Dreyer and Co (Pty) Ltd
[1997]
9 BLLR 114
(LAC).