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[2013] ZALCJHB 98
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Khosa v ABSA Bank Ltd (JS 812/2012) [2013] ZALCJHB 98 (12 March 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JS 812/2012
In the matter between:
ARTHUR
LAYANI KHOSA
.................................................................
Applicant
and
ABSA
BANK LIMITED
....................................................................
Respondent
Heard :12 March 2013
Delivered : 12 March 2013
EX-TEMPORE judgment-reasons for order
AC BASSON J
[1] This is an application for condonation for the late filing of the
statement of claim. The statement of claim was filed 54 days
late,
and the condonation application 147 days after the statement of claim
was filed. The certificate of outcome was issued on
12 April 2012 and
the applicant had to deliver his statement of claim no later than 11
July 2012. The applicant only delivered
his statement of claim on 3
September 2012. It should be noted that the respondent raised the
issue of condonation already on 17
September 2012.
[2] Despite the fact that the applicant was alerted to the need to
apply for condonation as far back as September 2012, the applicant
only filed the application for condonation on 29 January 2013 - more
than four months after the applicant was alerted to the need
to file
a condonation application. It is trite law that an applicant should
file an application for condonation without delay.
1
Instead
the applicant waited another four months before it applied for
condonation. This is unacceptable. A litigant must seek an
indulgence
as soon as he or she becomes aware of the need to do so.
2
[3] I have also taken note of the fact that the applicant had been
represented by attorneys throughout the process and he therefore
should have been advised by his attorneys that the dispute had to be
referred to the Labour Court and not to arbitration under
the
auspices of the CCMA.
[4] If regard is had to the statement of claim, it is clear that the
applicant is alleging discrimination on the basis of race.
The law is
clear: where an applicant alleges discrimination on the basis of
race, the dispute must be referred to the Labour Court
after
conciliation and not to arbitration. Furthermore, as already pointed
out, the applicant had been represented by attorneys
who should have
alerted him to the fact that the matter had to be referred to the
Labour Court. There could not have been any confusion
regarding the
nature of the dispute as the statement of claim clearly shows the
cause of action of the applicant to be based squarely
on the
provisions of section 6 of the Employment Equity Act
3
as he is alleging that he was discriminated against on the basis of
race.
[5] The applicant fails to explain the degree of lateness and merely
boldly asserts that he was not “legally required to
apply for
condonation”. He further merely states that if he is required
to apply for condonation he does so. While he applies
for condonation
he fails to provide a reasonable explanation for the delay.
4
An applicant is in terms of section 191(11)(a) of the Labour
Relations Act
5
(‘the LRA’) to refer a dispute within 90 (ninety) days
after the dispute was conciliated. Based on the fact that the
applicant was legally represented and also based on the fact that the
dispute relates to discrimination he ought to have been aware
of the
time frame within which he was required to institute a referral to
this Court. The applicant also fails to explain this
glaring point,
namely, why a dispute based on racial discrimination was referred to
arbitration. I do not accept that the fact
that the Commissioner had
indicated on the Certificate of Outcome that the matter had to be
referred to arbitration is an excuse
for referring a matter to the
wrong forum. I have already indicated that the applicant has been
legally represented throughout
this dispute. I am therefore not
persuaded that the applicant has adequately explained the delay. The
application should therefore
be dismissed on this point alone. The
applicant’s reliance on poor legal advice is not a ground to
warrant condonation. Coupled
with the applicant’s failure to
timeously seek an indulgence for the late filing of the referral
warrants a dismissal of
the application. It is therefore not
necessary for this Court to even consider the merits.
[6] However, even if this Court is inclined to consider the merits of
the matter, it is clear from the application for condonation
that the
applicant makes out no case in respect of the prospects of
success,
6
except
for a bold statement that he has good prospects of success.
7
That case must be made out in the condonation application and the
papers filed in support thereof.
[7] Furthermore, I have already indicated that condonation should be
brought immediately when it comes to the litigant’s
attention
that condonation is need.
8
[8] In the event, the application for condonation is dismissed. I
have considered the issue of costs, and in the interests of fairness,
I have decided to make no order as to costs.
[9] I therefore make the following order:
9.1 The application for condonation for the late filing of the
statement of claim is dismissed.
9.2 There is no order as to costs.
_______________________
AC BASSON J
Judge of the Labour Court
19 April 2013
1
See
also: Rennie v Kamby Farms (Pty) Ltd
1989 (2) SA 124
(A) at 129G
where Hoexter JA stated: 'Whenever an appellant realises that he has
not complied with a Rule of Court he should
apply for condonation
without delay.'
2
In
Darries v Sheriff,
Magistrate's Court, Wynberg, and Another
1998
(3) SA 34
(SCA)
Plewman JA (with whom Hefer JA, Eksteen JA,
Olivier JA and Melunsky AJA concurred) at 40I - 41A/B stated as
follows: 'Condonation
of the non-observance of the Rules of this
Court is not a mere formality. (See
Meintjies
v H D Combrinck (Edms)Bpk
1961
(1) SA 262 (A)
at 263H - 264B;
Saloojee
and Another NNO v Minister of Community Development
1965
(2) SA 135
(A)
at 138E - F.) In all cases some acceptable
explanation, not only of, for example, the delay in noting an
appeal, but also, where
this is the case, any delay in seeking
condonation, must be given.
An
appellant should whenever he realises that he has not complied with
a Rule of Court apply for condonation as soon as possible.
See
Commissionerfor
Inland Revenue v Burger
1956
(4) SA 446 (A)
at 449F - H;
Meintjies'
case
supra
at 264B;
Saloojee's
case
supra
at 138H.
Nor
should it simply be assumed that, where non-compliance was due
entirely to the neglect of the appellant's attorney, condonation
will be granted. See
Saloojee's
case
supra
at 141B - G.
In applications of this sort
the appellant's prospects of success are in general an important
though not decisive consideration
.
When application is made for condonation it is advisable that the
petition should set forth briefly and succinctly such essential
information as may enable the Court to assess the appellant's
prospects of success.
See
Meintjies'
case
supra
at 265C - E;
Rennie
v Kamby Farms (Pty) Ltd
1989
(2) SA 124 (A)
at 131E - F;
Moraliswani
v Mamili
1989
(4) SA 1
(A)
at 10E. But appellant's prospect of success if but
one of the factors relevant to the exercise of the Court's
discretion, unless
the cumulative effect of the other relevant
factors in the case is such as to render the application for
condonation obviously
unworthy of consideration. When non-observance
of the Rules has been flagrant and gross an application for
condonation should
not be granted, whatever the prospects of success
might be. See
Ferreira
v Ntshingila
1990
(4) SA 271 (A)
at 281J - 282A;
Moraliswani
v Mamili (supra
at
10F);
Rennie v
Kamby Farms (Pty) Ltd (supra
at
131H);
Blumenthal
and Another v Thomson NO and Another
[1993] ZASCA 190
;
1994
(2) SA 118
(A)
at 121I - 122B.' (Court’s emphasis.)
3
Act
55 of 1998
4
In
Melane v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at
532C-F, the court held 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. It
is also important to consider what steps the applicant took as soon
as it became aware that he or she was
late in terms of the required
time frames. In other words the applicant should bring the
application for condonation as soon
as he or she becomes aware of
the lateness of its case.
5
Act
66 of 1995
6
See
also
Novo Nordisk v CCMA &
Others
J2498/08
where the
Court
gave a particular helpful exposition of
the principles governing condonation applications:
“
Principles governing
condonation
[23] This Court has in several of its judgments
stated that the principles governing the r
equirement for
granting or refusal of condonation are well established in our law.
In terms of t
hese principles the Court 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 judgement, (f) the convenience of
the court; and (g) avoidance of unnecessary delay in the
administration of justice. See Foster v Stewart Scott Inc (1997)
18 ILJ 367 (LAC).
[24] There is also clear authority that 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.
[
25] 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.
[26] The 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) Ltd1975 (1) SA 612 (D) and Chetty v Law
Society1985 (2) SA at 765A-C.
[27] It is important to point out 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 Melane v Santam Insurance Co Ltd,
1962 (4) SA 531
(A) at 532C-F.
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.”
Further at paragraph [45] the Court explains what must
be addressed when dealing with the prospects of success:
“
[45] In my view whilst the
standard required in showing prospects of success is lower than that
applied when the main case is
considered. The applicant for
condonation needs show more than just listing factors related to
prospects of success. The applicant
needs to persuade the Court that
there is a chance of the arbitration award being found when the
review is considered in the
main case to be irregular or
unreasonable”.
.
7
“
I
have good prospects of success as clearly outlined in my statement
of claim”.See in this regard:
Rustenburg
Gearbox Centre v Geldmaak Motors CC t/a M E J Motors
2003 (5) SA 468
(T) where the full bench held as follows:” In
para 14 at p 419 the appellant simply submits that it has good
prospects
of success on appeal. (See also para 4.2 at p 21 of the
notice of motion of 21 February 2003.) That is not sufficient. What
is
required is that the deponent should set forth briefly and
succinctly the essential information that may enable the Court to
assess the appellant's prospects of success
.
A bald submission unsupported by any factual averments is not good
enough to discern what the prospects of success are in this
matter
.
“ (471A – C.) (Court’s emphasis.)
8
See
also:
Seatlolo and
Others v Entertainment Logistics Services (A division of Gallo
Africa Ltd
32 ILJ
2206 (LC) at paragraph 10
:
‘
It
is trite law that an application for condonation must be brought as
soon as the party becomes aware of the default. This principle
has
been emphasized by the Supreme Court of Appeal on numerous occasions
(see
Saloojee
at 138H;
Rennie
v Kamby Farms (Pty) Ltd
1989
(2) SA 124
(A) at 129G; and
Napier
v Tsaperas
1995
(2) SA 665
(A) at 671B-D).This approach has been endorsed by the
Labour Appeal Court which in fact advocates bringing the application
for
condonation on the same day it is discovered to be necessary.
See in this regard inter alia
Allround
Tooling (Pty) Ltd v NUMSA and others
[1998] 8 BLLR 847
(LAC) at
849 para 8;
NEHAWU
v Nyembezi
[1999]
5 BLLR 463
(LAC) at 464D-F; and
Librapac
CC v FEDCRAW and others
(1999)
20 ILJ 1510 (LAC)
;
[1999] 6 BLLR 540
(LAC) at 543.’