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[2013] ZALCD 13
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Mkhize v Commission for Conciliation Mediation and Arbitration and Others (D95/2011) [2013] ZALCD 13 (13 June 2013)
Not Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
DURBAN
JUDGMENT
case
no: D95/2011
In the matter between:
Michael
Mkhize
...........................................................................................
Applicant
And
CCMA
...................................................................................
1
st
Respondent
Vino
Subramoney
..............................................................
2
nd
Respondent
Snackworks
.........................................................................
3
rd
Respondent
Date of
hearing:
11 June 2013
Date of
judgment:
13 June 2013
Summary:
Application for review of an arbitration award. Application filed at
least 5 weeks late. Affidavit in support of condonation failing
to
set out reasonable explanation for delay Prospects of success not
sufficient to overcome poor explanation for late filing
JUDGMENT
GUSH J
This
is an application by to review,
set aside and
refer back to the 1
st
respondent the award handed down the 2
nd
respondent in which award the 2
nd
respondent concluded at the conclusion of the
arbitration hearing that the applicant’s dismissal by the 3
rd
respondent was fair and dismissed the applicant’s
application.
The
applicant,
having filed the review application
at least 5 weeks late applied for the late filing of his review to
be condoned.
The
applicant had been dismissed by the 3
rd
respondent after he had been charged with and had been
found guilty of “facilitating a bribe and attempting to extort
money
from one Mr Magwaza”. The background to the charge of
misconduct was essentially that the applicant, a shop steward, was
accused of being party to seeking to force Magwaza to pay to a
colleague an amount of R500 as some form of compensation for a
rumour which Magwaza had allegedly spread regarding the colleagues
HIV status. Magwaza was told that unless he paid the money
the
incident would be reported to the employer and that he, Magwaza
would be dismissed.
The applicant,
dissatisfied with his dismissal, referred a dispute concerning his
dismissal to the first respondent who in turn
appointed the third
respondent to arbitrate the dispute after it had been unsuccessfully
conciliated.
The arbitration
commenced on 27 May 2010 and continued on 15 July 2010, 1 and 2
September 2010 and was finalised on 4 October 2010. The
applicant was represented at the arbitration by an official of his
trade
union, FAWU. The third respondent issued his award on 25
October 2010 and it was faxed to and received by the applicant’s
trade union representative on the 17 November 2010.
The applicant avers in
his founding affidavit that he received the award that he received
the award on the 24 November 2010.
The rules of this court
require an applicant who wishes to review an award of a CCMA
Commissioner to file such application within
six weeks of the date
upon which the award comes to the applicant’s attention. In
this matter the applicant, having received
the award on 24 November
2010 was required to file his review application on 5 January 2011.
The applicant only filed his review
application 10 February 2011,
some 5 weeks after the date upon which it should have been filed.
The applicant, despite
the absence of a prayer in his notice of motion for the condonation
of the late filing of the application,
in his founding affidavit
under the heading "Application for Condonation” sets out
the reasons for the late filing
of the application and "prays
to the honourable court to grant ... relief as the notice of motion
prefixed hereto".
The applicant’s
application including the application for condonation was opposed by
the second respondent.
In considering the
merits of the applicant’s application for condonation it is
necessary to first consider the principles
which the courts have
applied in determining whether or not to condone the late filing of
an application.
These
principles have been set out by this court on many occasions. It is
necessary to reiterate these principles against which
the
applicant’s application for condonation must be considered
before considering the merits of the applicant’s application.
In
Melane v Santam Insurance Co Ltd
1
it was held:
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case.
2
In
the recent and as yet unreported matter of
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd & others
3
the Supreme Court of
Appeals referred to the judgement of Holmes JA in Federated
Employers Fire & General Insurance Co Ltd
& another v
McKenzie
4
in support of the
proposition that:
Factors
which usually weigh with this court in considering an application for
condonation include the degree of non-compliance,
the explanation
therefor, the importance of the case, a respondent’s interest
in the finality of the judgment of the court
below, the convenience
of this court and the avoidance of unnecessary delay in the
administration of justice
.
In
the judgement the court also referred to the matter of Uitenhage
Transitional Local Council v South African Revenue Service
5
where the court held:
One
would have hoped that the many admonitions concerning what is
required of an applicant in a condonation application would be
trite
knowledge among practitioners ...: condonation is not to be had
merely for the asking; a full, detailed and accurate account
of the
causes of the delay and their effects must be furnished so as to
enable the Court to understand clearly the reasons and
to assess the
responsibility. It must be obvious that, if the non-compliance is
time-related then the date, duration and extent
of any obstacle on
which reliance is placed must be spelled out.
In
the also as yet unreported judgment by the Constitutional Court in
the matter of eThekwini Municipality and Ingonyama Trust
6
the court said the
following:
As
stated earlier, two factors assume importance in determining whether
condonation should be granted in this case. They are the
explanation
furnished for the delay and prospects of success. In a proper case
these factors may tip the scale against the granting
of condonation.
In a case
where the delay is not a short one, the
explanation given must not only be satisfactory but must also cover
the entire period of
the delay. Thus in Van Wyk v Unitas Hospital and
another (Open Democratic Advice Centre as Amicus Curiae), this Court
said in this
regard:
“
An
applicant for condonation must give a full explanation for the delay.
In addition, the explanation must cover the entire period
of delay.
And, what is more, the explanation given must be reasonable. The
explanation given by the applicant falls far short of
these
requirements. Her explanation for the inordinate delay is superficial
and unconvincing.
The
Labour Court and the Labour Appeal Court have both in similar vein
dealt with the requirements and principles applicable to
an
application for condonation. In High Tech Transformers (Pty) Ltd v
Lombard
7
the Honourable Basson J
dealt with an application for condonation as follows:
Condonation
is not merely for the asking as was duly pointed out by the court in
NUMSA & another v Hillside Aluminium
[2005] ZALC 25
;
[2005] 6 BLLR 601
(LC):
Additionally, there should be an acceptable explanation tendered in
respect of each period of delay. Condonation is not there
simply for
the asking. Applications for condonation are not a mere formality.
The onus rests on the applicant to satisfy the court
of the existence
of good cause and this requires a full, acceptable and ultimately
reasonable explanation. One of the primary purposes
of the Labour
Relations Act is to ensure that disputes are resolved expeditiously,
especially dismissal disputes. ... to do justice
to the aims of the
legislation, parties seeking condonation for non-compliance are
obliged to set out full explanations for each
and every delay
throughout the process. An unsatisfactory and unacceptable
explanation for any of the periods of delay will normally
exclude the
grant of condonation, no matter what the prospects of success on the
merits. The latter principle was stated by Myburgh,
JP in NUM v
Council for Mineral Technology
[1999] 3 BLLR 209
(LAC) at 211G-H:
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 delay, an application
for condonation
should be refused.
This
principle was followed in the matter of
Moila
v Shai NO & others
8
in which the then
Honourable Judge President Zondo held:
Indeed,
it is clear from P E Bosman Transport Works Committee v Piet Bosman
Transport (Pty) Ltd
1980 (4) SA 794
(T) at 799D; (1980) 1 ILJ 66 (T)
that in a case such as this one, it is not necessary to consider the
prospects of success and
that condonation could be refused no matter
how strong the prospects of success are in a case such as the present
one. P E Bosman
was a case where the appellant had failed to note the
appeal and deliver the appeal record timeously and there were periods
of
delay for which there was either no acceptable explanation or no
explanation at all ...”
9
In this matter the
applicant attempts to explain the late filing of his application.
The applicant confines the reasons for the
late filing of his
application to the following:
I
humbly request the honourable court to condone the late filing of
this review application as I have good prospects of success
of this
review application.
On
about 24 November 2010 I received a copy of an arbitration award
which was faxed to my union on about 17 November 2010.
Mr
Silongwe of Food and Allied Workers Union then told me that he would
take the same award to Mr Vusi Landu for a legal opinion
on becoming
down to Durban from Cape Town.
As
I was still waiting to hear from him, Mr Silongwe then told me he
would take it to another legal officer union in Free State
Mr
Sondiyazi.
In
about the beginning of December Mr Silongwe told me that Mr
Sondiyazi said to him I do not have prospects of success in the
matter.
I
was not happy with the opinion of Mr Sondiyazi because he did not
consult with us to hear side of the story on this review
application.
I
then went to Ponoane Attorneys in about 13 December 2010 and I left
the award with the secretary for the attention of Mr Ponoane.
When
I phoned in the second week of January 2011, I was told Mr Ponoane
is in hospital since October 2010 would only be in the
office on 1
February 2011.
I
was only able to consult with anyone for February 2011 and whereby
help me with this application.
10
The
applicant does not disclose the extent of the delay, and does not
explain the delay in dropping off the award and his contacting
the
attorney in January. In particular the averment that he simply left
the award with a secretary when the attorney whose services
he
wished to engage was not in office and had not been for some two
months and apparently was not going to be in office for some
time,
which cries out for some explanation,
is
not explained.
In response to and in
opposing the applicants application for condonation the 3rd
respondent in addition to challenging the reasons
advanced by the
applicant for the delay, referred to the applicants lack of
confirmatory affidavits.
The
applicant's response to this was to simply indicate that it would
not be a problem to obtain confirmatory affidavits and attached
an
affidavit from Mr Ponoane
that
simply confirmed the applicants affidavits “in so far as they
relate to me”
In
the matter of Chetty v Law Society, Transvaal
11
the court,
dealing with an
application for condonation held
An
ordered judicial process would be negated if, on the other hand, a
party who could offer no explanation of his default other
than his
disdain of the Rules was nevertheless permitted to have a judgment
against him rescinded on the ground that he had reasonable
prospects
of success on the merits
.
12
In matters of this
nature is not only the negation of an ordered judicial process that
is of concern but the late filing of applications
to review
arbitration awards goes to one of the fundamental principles
underpinning the Labour Relations Act, namely the expeditious
resolution of labour disputes.
I
am of the view that a delay of five weeks, which is nearly twice the
time allowed by the Labour Relations Act, is a substantial
and
excessive delay. The applicant’s somewhat cavalier and
disdainful approach to his condonation application the delay,
which
is reflected in his failure to record the extent of the delay and to
provide some credible explanation, renders his “purported
explanation for the delay ...
no
explanation at all”
13
.
I am of the view that
the applicants application for condonation is so devoid of detail
and reasonable explanation for the delay
that, as has been held
repeatedly by this court, that is that “without a reasonable
and acceptable explanation for the
delay, the prospects of success
are immaterial”
Counsel for the
applicant, however, sought to persuade the court that despite the
obvious failure by the applicant to properly
explain the delay, that
the applicants prospects of success were such that they outweighed
the applicant’s wholly inadequate
explanation.
On
the merits and in support of the averment that the applicant had
"some prospects of proving that he was unfairly dismissed",
the applicant in essence
submitted that the 2
nd
respondent’s
decision was unreasonable in that she did not have regard for the
evidence before her.
The applicants grounds
of review essentially suggest that the second respondents award was
reviewable on the basis of the test
the Constitution Court
determined should be applied in determining whether an award is
reviewable viz:
Whether
the award is one that a reasonable decision maker could arrive at
considering the material placed before him.
14
Even taking into account
the applicants grounds of review I am not satisfied that the
applicant has established or has reasonable
prospects of
establishing that the award of the third respondent is reviewable.
The second respondents award has in detail analysed
the evidence,
the demeanour and credibility of the witnesses and importantly the
probabilities of the two versions presented
to her, before
concluding that the applicant’s dismissal was fair.
In the circumstances
even taking the applicant’s prospects of success into account,
there is nothing to suggest that the
conclusion reached by the 2nd
respondent that the applicant’s dismissal was fair, for the
reasons set out in the award
that the award, is one which a
reasonable decision maker could not have arrived at taking into
account the evidence or material
placed before her.
In the absence of any
basis why costs should not follow the result I make the following
order:
The applicants’
application for condonation for the late filing of the review is
dismissed with costs.
____________________
D H Gush
Judge of the Labour Court
Appearances:
For the Applicant: M J Ponoane; Ponoane Attorneys
For the Third Respondent: S Bosi; Norton Rose Fulbright.
1
1962
(4) SA 531
(A)
2
at
page 532
3
(619/12)
[2013] ZASCA 5
(11 March 2013)
4
1969
(3) SA 360
(A) at 362F-G)
5
2004
(1) SA 292
(SCA) para 6
6
Case
Number[2013] ZACC 7
7
(2012)
33 ILJ 919 (LC) 2012 ILJ at page 919
8
(2007)
28 ILJ 1028 (LAC)
9
At
page 1038 paragraph 36
10
Founding
affidavit pages 11 and 12
11
1985
(2) SA 756
(A)
12
At
765D-E
13
(2007)
28 ILJ 1028 (LAC) at page 1037 paragraph 34
14
Edcon
Ltd v Pillemer NO & others[2010]
1 BLLR 1
(SCA) at p9 Para 15