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[2014] ZALCJHB 12
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National Union of Metal Workers of South Africa (NUMSA) v Parbar (Pty) Ltd (JS 142/11) [2014] ZALCJHB 12 (8 January 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: JS 142/ 11
In
the matter between:
NATIONAL
UNION OF METAL WORKERS
OF
SOUTH AFRICA (“NUMSA”) OBO
STEVE
MOJELA AND 57 OTHERS
............................................
..... ....
Applicant
and
PARBAR
(PTY) LTD
...............................
...........................................
Respondent
Heard:
14 August 2013
Delivered:
08 January 2014
Summary:
Application for the late filing of the statement of case. The test
to apply. The interest of justice taking into account
factors such as
the period of the delay, the explanation, prospects of success, the
importance of the matter and prejudice.
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This
is an application for condonation for the late filing of the
statement of case by the applicants. In their statement of case
the
applicants avers that their dismissal was substantively unfair.
The statement of case is 21 months late.
[2]
The
dismissal of the applicants was as a result of the allegation that
they participated in an unprotected strike action on 3 November
2010.
Prior to the unprotected strike action the applicants participated in
a protected national strike arising from a wage dispute.
[3]
The
national wage dispute was resolved during September 2010, on the
basis that the wages of the applicants would be increased and
be
backdated. On the return to work the shop-stewards were
dismissed and as a result thereof the employees formed a committee
to
represent them in their dealings with management.
[4]
On
3 November 2010, the committee approached Mr Barbaglia to enquire as
to when they could expect to receive their salary increase
which had
been agreed upon at the Bargaining Council. Mr Bargalia is alleged to
have informed the employee that they should approach
their union for
their increase.
[5]
On
receipt of the report about what Mr Barbaglia had said concerning the
increase the employees embarked on a work stoppage. The
employees
were then approached by Mr Barbaglia and Mr Anderson who informed
them that they will receive their salary as soon as
the respondent
received the Government Gazette confirming what the wage increase
was. The employee requested a written confirmation
of the undertaking
but Mr Barbaglia and Mr Anderson refused to provide the same. In
reaction the employees refused to resume work.
[6]
The
statemate was resolved by the intervention of the SAPS and the
union. It was agreed that the employees were to report
for work
the following day. According to the applicants on arrival at work the
following day they found management at the gate
and certain employees
were allowed to go in and the others not.
[7]
The
applicants were after several days of tendering their services
summoned to a disciplinary hearing where they were found guilty
and
dismissed.
The
reasons for the delay
[8]
According
to the applicants the main reason for the delay was the incompetent
manner in which the union official, Mr Mdlalose, handled
their
matter. Mr Mdlalose, who was assigned to deal with the
applicants’ matter was subsequently dismissed by
the
union for poor work performance in early 2012. Prior to his
dismissal Mr Mdlalose kept informing the applicants whenever
they
enquired about progress on their matter, that it was receiving
attention. It however, turned out after his dismissal
that
except for obtaining a case number from the Court, Mr Mdlalose had
not done anything to progress the matter further.
Prospects
of success
[9]
As
concerning prospects of success, the case of the applicants is
set out by the deponent to the founding affidavit
in the
following terms:
‘
3.1
The applicants were not on an unprotected strike as they were not
obliged to tender their services, the respondent having failed
to
comply with its obligations in terms of the Main Agreement;
3.2 The matter was
resolved by agreement which the respondent then failed to comply
with;
3.3 The respondent was
selective in how it dismissed the individuals. I do not know the
basis in which the respondent made its selection;
3.4 The respondent failed
to hold a proper disciplinary enquiry;
3.5 The penalty of
dismissal was too severe given the fact that:
3.5.1 The respondent
provoked the individuals by failing to pay them in terms of the Main
Agreement;
3.5.2 There was a good
reason for the individual applicants ceasing to work;
3.5.3 The failure to work
was for an extremely short time;
3.5.4 The applicants had
agreed to work on the weekend to recover lost production;
3.5.5 The respondent
breached its agreement with the applicants;
3.5.6 The respondent
failed to take mitigating factors into account.
3.6 The disciplinary
hearing was unfair given that the applicants were given no notice and
no time to prepare’.
Legal
principles
[10]
The
test to apply in determining whether to grant or refuse condonation
application is the interest of justice.
[1]
In confirming this test as set out
Brummer
v Gorfil Brothers Investment (Pty) Ltd
,
[2]
Zondo J in
Grootboom
,
[3]
had the following to say:
‘
50
In this Court the test for determining whether condonation should be
granted or refused is the interests of justice. If it is
in the
interests of justice that condonation be granted, it will be granted.
If it is not in the interests of justice to do so,
it will not be
granted. . .
51.
The
interests of justice must be determined with reference to all
relevant factors. However, some of the factors may justifiably
be
left out of consideration in certain circumstances. For example,
where the delay is unacceptably excessive and there is no explanation
for the delay, there may be no need to consider the prospects of
success. If the period of delay is short and there is an
unsatisfactory
explanation but there are reasonable prospects of
success, condonation should be granted. However, despite the presence
of reasonable
prospects of success, condonation may be refused where
the delay is excessive, the explanation is non-existent and granting
condonation
would prejudice the other party. As a general proposition
the various factors are not individually decisive but should all be
taken
into account to arrive at a conclusion as to what is in the
interests of justice’.
[11]
In
determining the interest of justice the inquiry to conduct involves
considering the following: (a) the degree of lateness or
the extend
of 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
defence 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.
[4]
[12]
In
conducting the enquiry into whether condonation application should be
granted or be refused the following broad principles must
be born in
mind:
a.
the
Court has a discretion which is to be exercised judicially after
taking into account all the facts and the circumstances of
the case
before it.
b
.
that
the factors which are taken into account in conducting the enquiry in
the interest of justice are not individually decisive
but are
interrelated and must be weighed against each other-the strong
compensating for the weak.
c.
the
applicant has to give an explanation that shows how and why the
default occurred.
d.
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.
e.
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.
[5]
.
f.
that
the applicant should bring the application for condonation as soon as
it becomes aware of the lateness of its case.
[6]
Evaluation
[13]
It
is common cause that the delay in this matter is excessive. The
certificate of outcome confirming that the parties have failed
to
resolve the dispute was issued on 13 December 2010 and the applicants
filed their statement of case and the condonation application
with
the Labour Court on 11 December 2012. The individual applicants
blame the union official who is alleged to have misled
them into
believing that their dispute had been referred to the Court when all
what he did was to open a file, obtain a case number
and thereafter
did nothing further than that.
[14]
On
discovering that the union official did not take any steps in
prosecuting their case, the individual applicants approached the
union’s head office and brought to their attention what the
union official did with their case. In support of the case that
they
never lost interest in their unfair dismissal claim the applicants
attached annexure “J” which records the number
of times
they reported at both the regional and head office of the union to
enquire about progress in their case. The annexure
shows that the
individual applicants made several inquiries during 2010, 2011 and
2012 about progress of their case at the various
offices of the union
including at the Bargaining Council. It would appear from the
annexure that the last enquiry made at the union
offices, both head
office and the regional offices was on 21 November 2012 and
thereafter they attended at what is referred to
as MMCC and the CCMA.
Annexure “K” indicates that three of the applicants who
claim to have represented the others
in engaging with the union about
the case attended at the regional office to enquire about their case.
[15]
It
would appear that towards the end of 2012, the individual applicants
realised that their case was not receiving the attention
they had
expected from the union. In this respect they approached a firm of
lawyers who on 26 November 2012 addressed a letter
to the union
informing it that they had been approached by the applicants for
assistance and sought instructions from the union
to proceed in
representing them on its behalf. The union responded two days later
on 28 November 2012 and advised the attorneys
about its policy on
briefing lawyers.
[16]
The
respondent contended that the individual applicants did nothing for a
period of eight months and that period is not explained.
This point
is raised in the context of annexure “J” to the founding
affidavit. It was further contended on behalf of
the respondent that
the applicants have failed to provide an answer in this regard in
their replying affidavit.
[17]
The
union conceded that it did not act diligently in instituting the case
on behalf of the individual applicants. It however, contends
that
there was nothing to trigger their attention to the failure to act
diligently by the said official. In other words there was
nothing
that prompted an investigation into the delay in properly referring
the dispute to the Court. It was for this reason that
it was
contended that the fact that this matter fell within the cracks
should not be held against the union.
[18]
In
considering whether or not to grant condonation, I have taken into
account the contention of the respondent that for a period
of eight
months the individual applicants did not do anything in terms
enquiring about progress in their matter from the union.
[19]
It
is apparent that the individual applicants are lay litigants who had
placed their hopes and trust that their case would be prosecuted
properly and timeously on the union. There is indeed no record of
attendance at the union or other entities by the individual
applicants during 2 February 2012 and 21 September 2012 a period of
about eight months. This should however, in my view be seen
in the
context where the individual applicants stated in their affidavit
that they had repeatedly attended at the union offices
to enquire
about their case. I do not read the recording of attendance at the
union offices to be saying that every attendance
was recorded in that
annexure. Account should also be taken of the fact that annexure “J”
shows a further attendance
at the union offices after 21 September
2012. It should also be noted that after repeatedly attending at the
union offices to make
inquiries about progress the individual
applicants finally approached attorneys for help. In this context the
individual applicants
did everything that a reasonable litigant in
their position could have done to pursue their claim. The totality
and the objective
facts as it appears from the affidavits do not in
any manner suggest that the individual applicants had lost interest
in pursuing
their unfair dismissal claim. The individual applicants
may be criticised for not acting sooner in terms of instructing the
attorneys
as they did in September. However, objectively speaking it
seems to me that it would be an injustice to label the applicants in
the context of what has happened to their case as having failed to
conduct themselves as diligent litigants.
[20]
In relation to prejudice, I accept the contention of the applicants
that the respondent will suffer no prejudice in particular
as
concerning loss of memory by the potential witnesses if condonation
was to be granted. Contrary to that contention it is apparent
from
the respondent’s papers that there is clear recollection of
what happened in as far as the details of the dispute is
concerned.
[21]
Turning
to the prospects of success it was argued on behalf of the applicant
that there were good prospects of succeeding if an
indulgence was
granted permitting matter to proceed to trial. The respondent on the
hand contends that there are no prospects of
the applicants
succeeding because:
27.1.1
‘
the
individual applicants partook in an unprotected strike …
27.1.2
the allegation that the applicants could refuse to perform their
duties as they were not paid their (sic) is
both bad in law and
false. This is specifically said as the increase only accrued to the
identified applicants upon publication
in the Government Gazette;
27.1.3
all striking employees who partook in the unprotected strike and
remained on strike (despite various invites
to return to work) were
eventually dismissed irrespective as to whether they were members of
the first applicant or, GIWUSA or
no trade union;
27.1.4
a disciplinary enquiry was held by an independent lawyer upon two
days’ notice to the striking employees
and everyone had the
right to state their case and examine witnesses;
27.1.5
the sanction of dismissal is appropriate given the number of
ultimatum and later requests to return to
work. This view, I
understand has recently been confirmed by the Constitution al Court .
. .’
[22]
In
the first instance consideration of prospects of success in a
condonation application has to be done on the basis of determining
whether there is
prima
facie
chance that the applicant will succeed when the main matter was to be
finally determined on the balance of probabilities. And secondly,
in
my view prospects of success in dismissal cases has to be assessed
taking into account the party that bears the onus of proof
in the
main matter.
[23]
It
is trite that in dismissal for misconduct cases, the employer bears
the onus of showing that the dismissal was for a fair reason.
In
determining the fairness of a dismissal arising from charges of
participating an unprotect strike action several factors have
to be
taken into account in determining the fairness or otherwise of such a
dismissal which includes but not limited to the duration
of the
strike action and the fairness of the ultimatum.
[24]
In
the present instance, the facts before this Court suggests very
strongly that the applicants have a chance of succeeding if
condonation was to be granted. In this case the applicants do not
seem to dispute that the applicants were issued with the ultimatum
to
return to work. According to the applicants the strike action was
only for one day as after the intervention of the SAPS and
the union,
it was agreed that the employees were to report for work the
following day. The applicants further state that on arrival
at work
the following day they found their managers at the gate. Some
employees were according to them allowed to enter the workplace
whilst they were refused entry.
[25]
It is common cause that the employees as per the agreement reported
for work the following day. It is also common cause that the
respondent allowed some employees into the workplace whereas the same
did not happen to the applicants. The respondent says it
refused the
applicants access because they refused to give an undertaking that
they would abandon their demand for the payment
of the increase
pending the production of the Government Gazette. According to the
respondent those who gave the undertaking were
permitted to enter the
workplace and as stated earlier the applicants would not give the
undertaking and were for that reason refused
access.
Conclusion
[26]
In
considering the facts and the circumstances surrounding the delay in
the filing of the statement of case of the applicants, I
am persuaded
that the interest of justice requires that an indulgence be granted
in favour of condoning the late filing of the
statement of case of
the applicants.
[27]
Turning
to the issue of costs, the union in light of its unacceptable conduct
in dealing with this matter correctly tendered costs
on a punitive
scale.
Order
[28]
In
the premises, the following order is made:
1.
The
applicants’ late filing of the statement of case is condoned.
2.
The
parties are directed at holding a pre-trial conference within 30 days
of date of this order.
3.
The
applicants are to pay the costs of this application on the attorney
and own client scale.
Molahlehi
J
Judge of the Labour
Court, South Africa
Appearances:
For
the Applicant:
.................................................
Ruth
Edmonds of Ruth Edmonds Attorneys
For
the Respondent:
.............................................
Adv
AJ Nel
Instructed
by:
........................................................
Lindeque
Van Heerden Attorneys
[1]
See
Grootboom
v
National
Prosecuting Authority
[2013]
ZACC 37
,
where this test was recently confirmed by the Constitutional Court.
In the main judgement the Constitutional Court, per Bosielo
J,
agreed with Zondo J, in his separate judgement regarding the
approach to adopt when considering an application for condonation
and held that the standard to apply is the interest of justice. The
Court in
the main
judgement refused condonation for the late filing of the opposing
appeal papers by the first respondent. In his judgement
Zondo J
found that condonation ought to have been granted.
[2]
2000 (2) SA 837
(CC).
[3]
See footnote 1
above
[4]
See
Foster
v Stewart Scott Inc
(1997)
18 ILJ 367 (LAC
).
[5]
See
Melane
v Santam Insurance Co Ltd
,
1962 (4) SA 531
(A) at 532C-F. 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 Zululand Electrical and Engineering
Wholesalers (Pty) Ltd
1975
(1) SA 612
(D) and
Chetty
v Law Society,Transvaal
1985
(2) SA at 765A-C. It is however not good enough for the applicant to
make bald averment that there are prospects of success
in his or her
case. See
Rustenburg
GearBox Centre v Geldmaak Motors
2003 (5)SA 468 (T). In dealing with the approach to adopt when
dealing with prospects of success and the explanation Zondo
J in
Grootbom
had the following to say: ‘[51]. . .
where
the delay is unacceptably excessive and there is no explanation for
the delay, there may be no need to consider the prospects
of
success. If the period of delay is short and there is an
unsatisfactory explanation but there are reasonable prospects of
success, condonation should be granted. However, despite the
presence of reasonable prospects of success, condonation may be
refused where the delay is excessive, the explanation is
non-existent and granting condonation would prejudice the other
party’.
[6]
This means that
the applicant in a condonation application has a duty to explain
also the delay in filing the condonation application
if that is the
case. Failure to provide an explanation for the delay in filing a
condonation application could be fatal to the
application.
See
Allround Tooling (Pty) Ltd v NUMSA and Others
[1998] 8 BLLR 847
(LAC) at
para
8 and
NEHAWU
v Nyembezi
[1999] 5 BLLR 463
(LAC).