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[2013] ZALCD 9
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National Union of Metal Workers of South Africa (NUMSA) obo Kunene and Others v Venture Otto (Pty) Ltd (D774/10) [2013] ZALCD 9 (7 May 2013)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, HELD AT DURBAN
JUDGMENT
Not Reportable
case
no: D774/10
In the matter between:-
NATIONAL UNION OF
METAL WORKERS OF
SOUTH AFRICA (NUMSA)
ON BEHALF OF NKULULEKO
KUNENE & 15 OTHERS
.....................................
Applicants
and
VENTURE OTTO (PTY) LTD
................................................................................
Respondent
Heard
: 28 February
2013
Delivered
: 07 May
2013
Summary
:
Condonation application – whether it is n the interests of
justice to grant
relief
judgment
CHETTY AJ
[1] This is an
application for condonation for the late filing of their statement of
claim by the applicants, which was filed 102
days late, or
approximately three months and three weeks late. The respondent in
the matter has also applied for condonation for
the late filing of
its reply. Unlike the delay of the applicant, the respondent’s
delay is minimal at nine (9) days.
[2] The background to the
dispute is that the applicants embarked on a strike in November 2009
which they considered to be a protected
strike. In the lead up to the
strike, the applicant referred a dispute regarding certain wage
anomalies to the Metal Industries
Bargaining Council on 5 October
2009. On 27 October 2009, the respondent referred a dispute to the
Council as to the interpretation
and application of a clause in the
collective agreement which governs the issue of wage disputes,
contending that the agreement
contains a peace clause, effectively
precluding the applicants from striking over the issue. A certificate
was issued on 9 November
2009 and on the same day the applicants gave
notice in writing that a strike would start at 11h30 on 11 November
2009. The respondent
states that it attempted to convince the union
against embarking on a strike and drew to its attention the potential
adverse effects
of a strike on the company’s business. As far
as the applicants were concerned, they believed that they were acting
lawfully
and all the requirements under the Labour Relations Act 66
of 1995 (‘the LRA’), had been complied with.
[3] At 15h00 on 10
November 2009, the respondent approached this Court for an urgent
interdict restraining the applicant and its
members from embarking on
a strike as they contended that the collective agreement precluded a
strike over a wage anomaly. The
applicant’s attorney at the
time informed the respondent’s attorney that in light of the
interdict having been granted,
the union would be withdrawing the
strike notice. The respondent states that the interdict was posted
onto various notice boards
but notwithstanding this, the union
proceeded to go on strike on 11 November 2009. It is not in dispute
that the strike lasted
from 12h00 on 11 November 2009 to 13h00 on 12
November 2009. Following the strike, the respondent took disciplinary
action against
15 (fifteen) of those who participated, seven (7) of
whom were union shop stewards. The respondent sought to justify the
selection
of those who faced disciplinary action on the grounds that
a number of the individual applicants were on final warnings for
having
engaged in an unprotected work stoppage in May 2009. All 15
employees were eventually dismissed, after what the union refers to
as “hastily convened disciplinary enquiries”.
[4] Subsequent to their
dismissals, the applicant referred the matter to the Dispute
Resolution Committee which issued a certificate
of outcome on 16
February 2010. It is common cause that in terms of section 191(1)(b)
of the LRA the applicants were obliged to
refer the matter to this
Court on or before 16 May 2010. In a statement of claim dated 24
August 2010, apart from the applicant’s
articulating the
grounds on which they contend the dismissals were unfair, they also,
as part of their relief, sought an order
“
granting leave to
enroll the statement of claim,
and that the late referral be
and is hereby condoned
”. In accounting for the delay, the
applicants alluded to internal delays in the union obtaining
authorisation to instruct
attorneys to act on its behalf, as well as
the fact that many of the individual applicants reside in remote
rural areas, making
it difficult to obtain timeous instructions from
them. In its reply to the statement of case, the respondent did not
deal at all
with the issue of condonation.
[5] On 9 July 2012, the
applicants brought a formal application, on affidavit, seeking
condonation for the late filing of their
statement of claim. This
application was opposed by the respondents. Mr Seery, who appeared
for the applicants, conceded that the
applicants had followed the
incorrect form in applying for condonation when they included this as
part of their statement of claim.
This error, he submitted, cannot be
attributed to the individual applicants, but rather to their
attorneys. In opposing the application
for condonation, Mr van Staden
for the respondents submitted that there had been no adequate
explanation for the delay of 102 days
and then too, the application
for condonation was defective.
[6] It is evident from
the papers that even though the applicant’s attorneys were
misguided as to the procedure in applying
for condonation, (where it
formed part of the statement of claim), there is no doubt that the
essential ingredients for the granting
of condonation were
foreshadowed in the statement of claim. The respondent also
‘measures’ the delay up to 24 August
2010, being the date
when the statement of claim was filed. The delay has not been
calculated to the date when the condonation
application was finally
lodged in September 2012. The matter must therefore then be
determined on the basis of whether a delay
of approximately three
months and three weeks is excessive, and whether any reasonable and
adequate explanation has been provided.
[7] It is now trite that
in an application for condonation, an applicant must set out a
satisfactory explanation for the lateness,
as well as establishing
that the prospects of success favour the granting of an order for
condonation. In
NUM
v Council for Mineral Technology
,
1
the Court affirmed the
well-established principle that
the
discretion in deciding such applications must be exercised
judicially, adding that
‘
A
slight delay and a good explanation may help to compensate for
prospects of success which are not strong. The importance of the
issue and strong prospects of success may tend to compensate for a
long delay. There is a further principle which is applied and
that 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.’
2
[8] Counsel for the
applicants accepted that even if the delay was long (but not
excessive) and that the explanation was adequate
(but not
overwhelming convincing), this Court was bound to consider the
prospects of success and the importance of the case for
the
applicants. Mr Seery submitted, without any contention to the
contrary, that the applicants are still without employment, that
they
were the sole breadwinners for their families who live in remote
parts of the province, and that if condonation were not granted,
this would effectively
mean the “end of the road” for their case. He further
submitted that the prospect of them suing
the union for damages were
remote. Whilst not agreeing entirely with counsel for the applicants,
Mr van Staden accepted that the
pivotal enquiry in this case is
whether it would be in the interests of justice to grant condonation
to the applicants. This enquiry
expands the traditional test in
Melane v
Santam Insurance Company Ltd
3
.
This test was developed in
SA
Post Office Ltd v Commission for Conciliation, Mediation &
Arbitration & others
4
where Waglay DJP said the
following
‘
The degree
of delay and the reason therefor complement each other. While the
degree of delay is a mere arithmetic calculation, it
is significant
in relation to the expeditiousness with which the matter was required
to be resolved. Hence, in matters where importance
is placed upon the
speedy and expeditious resolution of a dispute, even a short delay
may not be excusable unless an explanation
is proffered that sets out
the reasons for the delay which the court finds acceptable. With the
factor of delay, go the prospects
of success. Where it is evident
that the party seeking condonation has no prospects of succeeding in
its principal claim or opposition,
no purpose is served in granting
condonation and the court must in such circumstance refuse to grant
condonation irrespective of
the degree of delay or the explanation
provided. Where the prospects of success are reasonably good or even
fair then, depending
on the delay and the explanation, consideration
must be given to the prejudice that the parties may suffer before the
discretion
can be exercised on whether to grant the indulgence
sought. The factor of prejudice plays a role only when the delay is
substantial.’
5
With regard to the
condonation being considered in the ‘interests of justice’,
the Court had the following to say
‘
The
appellant has explained the delay. The delay was due to the fact that
its erstwhile attorneys gave false reports to it about
the progress
of the matter. The appellant’s conduct up to the date of
granting of the petition cannot be ignored. It is clear
that the
appellant diligently persisted with the case from the very outset
when the arbitration award went against it, to the time
of the
granting of the petition. What went wrong thereafter was ultimately
the fault of the appellant’s erstwhile attorneys.
Although the
delay is satisfactorily explained and the prospects of success favour
the appellant, because this dispute deals with
an individual
dismissal I am of the view that this Court cannot come to the aid of
the appellant unless this is a matter where
the interest of justice
demands the Court’s intervention. (See
Queenstown
Fuel Distributors CC
as
quoted in para 20 above.)
This then leads to the crucial
question of whether this is a kind of matter where the interest of
justice demands that this court
intervenes and grants the condonation
sought.
The interest of justice is not a vague
and catch-all phrase that may be latched onto in order to justify
one’s own feeling
of the inequity that may result if there is
no interference from the Court. This factor must be utilized only
where the absence
of interference by the court would offend one’s
sense of justice.’
6
[9] A similar approach
has been developed by the Constitutional Court in
Van
Wyk v Unitas Hospital
7
where the Court held that
This Court has
held that the standard for considering an application for condonation
is the interests of justice. (See
S
v Mercer
[2003] ZACC 22
;
2004
(2) SA 598
(CC)
(2004) (2) BCLR 109)
in para 4 [also reported ar
2004
(1) SACR 1-Eds]
;
Head
of Department, Department of Education, Limpopo Province v Settlers
Agricultural High School and Others
2003 (11)
BCLR 1212
(CC) in para 11; and
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC 3
;
2000 (2)
SA 837
(CC)
(2000 (5) BCLR 465)
in para 3.)
Whether
it is in the interests of justice to grant condonation depends on the
facts and circumstances of each case. Factors that
are relevant to
this enquiry include but are not limited to the nature of the relief
sought, the extent and cause of the delay,
the effect of the delay on
the administration of justice and other litigants, the reasonableness
of the explanation for the delay,
the importance of the issue to be
raised in the intended appeal and the prospects of success. (See
Brummer
id.
)
8
[10] In considering
whether it is in the interests of justice to grant condonation, I
have had regard to the applicant’s case
on the merits and its
prospects of success. The applicant contends that the dismissal of
the individual applicants must be seen
against the backdrop that they
embarked on the strike in the belief that their actions were lawful.
The respondent contends that
the applicants cannot pretend to be
ignorant of the withdrawal of the strike notice as they had been
addressed by a union official
Mr Hlatswayo on the morning of 11
November 2009, about the interdict which had been obtained the day
before. There is nothing on
the papers to substantiate who was there
at the meeting addressed by Hlatswayo and exactly what was conveyed
to the employees.
A crucial point stressed by Mr Seery is that if
condonation is not granted, the respondent will have succeeded in
weakening union
representivity at the workplace in light of the
number of shop stewards dismissed as a result of the strike.
Moreover, the duration
of the strike was for no more than 25 hours
and there is no evidence of damage to property or other similar
allegations. The applicants
contend that the respondent’s
actions in holding disciplinary enquiries, targeted at the union
leadership, was disproportionate
and for an ulterior purpose. While
the respondent argues that the dismissals were based upon the
individual applicants having prior
valid warnings for similar conduct
within the past 6 (six) months, this is disputed by the applicants
who challenge the validity
of the warnings and contend that they have
expired. Moreover, it is also contended that 3 (three) of the
individual applicants
were not on any warnings at the time.
[11] I am satisfied that
despite the delay in filing its statement of case, it would not be in
the interests of justice to shut
the door on the applicants in
refusing condonation. The respondent also recognises the importance
of the matter being fully ventilated
at trial. No blame can be
attached to the individual applicants for the delay which resulted
and for these reasons, I would grant
the application for condonation.
[12] The respondent also
brought an application for condonation for being 9 (nine) days late
in the filing of its reply to the applicant’s
statement of
claim. In order to prepare a response, the respondent had to locate
the personnel records of each applicant and thereafter
these were
forwarded to counsel, and incorporated as part of its papers. The
applicant did not oppose the application and I am
satisfied that the
explanation is satisfactory, with minimal delay occasioned by the
late filing. I would therefore grant the application.
[13] In the result, I
make the following order:
The applicant’s
application for condonation for the late filing of its statement of
claim is granted;
The respondent’s
application for condonation for the late filing of its reply is
granted.
No order as to costs.
_______________________
Chetty, AJ
Acting Judge of the
Labour Court
For the Applicant: Adv. T
Seery.
Instructed by Harkoo
Brijlal & Reddy.
For the Respondent: Mr M
van Staden
Instructed by Savage
Jooste & Adams
1
[1999]
3 BLLR 209
(LAC).
2
Above
at 211G-I.
3
1962
(4) SA 531
(A)
4
(2011)
32 ILJ 2442 (LAC)
5
Above
2448A-E.
6
Above
2453E-2454A.
7
[2007] ZACC 24
;
2008
(2) SA 472
8
Above
477A-C.