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[2014] ZALCJHB 57
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Mabudsha v Commission for Conciliation, Mediation And Arbitration and Others (JR3347/2010) [2014] ZALCJHB 57 (9 January 2014)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case No JR 3347/2010
In the matter between:
WILSON
MABUDSHA
Applicant
and
THE
COMMISSION FOR
CONCILIATION,
First
Respondent
MEDIATION AND
ARBITRATION
ARBITRATOR
– L NOWOSENETZ
NO
Second
Respondent
LAND
BANK
Third
Respondent
Heard:
19 December 2013
Delivered:
10 January 2014
Summary:
Application for condonation for the late filing of an application for
the review of an award. This was
principally due to the negligence of
the attorney who was ignorant of the time period prescribed in the
LRA. Held that the applicant
cannot escape the negligence of his
attorney. Further held that the prospects of success on review are
not promising. Condonation
refused.
JUDGMENT
SEEDAT
AJ
Background
[1]
The applicant in the main review application seeks condonation for
the filing of the notice of motion
and the statement of claim in
support of his review application outside the statutorily prescribed
period.
[2]
It was agreed that I would hear arguments in the condonation
application in tandem with the review application
on the
understanding that should I grant condonation I will then consider
the application for review. Of course, if I hold otherwise,
the
application for review will fall away.
[3]
The applicant, a manager in financial administration, was dismissed
by the third respondent (the employer)
on a number of grounds
relating to absenteeism, punctuality, claiming for time he did not
work and the divulgence of the security
settings on his computer to a
fellow employee.
[4]
The applicant challenged the dismissal as both being without a fair
reason and procedurally defective.
[5]
The second respondent (the commissioner) concluded that the dismissal
was procedurally fair but not
for a fair reason and awarded two
months’ compensation. The applicant is unhappy with the
compensatory award and claims that
he should have been reinstated.
The
condonation application
[6]
The applicant received the award from the CCMA on 1 December 2010.
The applicant brought the application
to review the commissioner’s
award five days outside of the six weeks prescribed in s 145(1)(a) of
the Labour Relations Act,
66 of 1995 (LRA).
[7]
The reasons for this delay are set out in paragraph 8 of the
affidavit in support of the application for
condonation:
‘
8.2
The Applicant did not at that time make an application for
condonation as they were (sic) of the view that the
dies
non
that is applicable to (sic) the
High Courts of South Africa was also applicable in the Labour Court.
8.3 Furthermore at the
time the Applicant gave the go ahead for Applicants’ (sic)
attorneys of record to file the review application
it was the festive
season and Applicants’ (sic) attorneys of record’s (sic)
were closed.’
[8]
The applicant’s attorneys only became aware of the prescribed
time limit for a review application
when told by the employer’s
attorneys some two years later.
[9] This
court and the appeal court have restated the broad principles for the
determination of condonation
as enunciated in
Melane
v Santam Insurance Co Ltd
[1]
.
These principles include the degree of delay, the reasons for the
delay, the prospects of success, and the prejudice the parties
will
suffer if condonation is granted or refused. In
NUM
v Council for Mineral Technology
[2]
the court said that an objective conspectus of all the facts is
needed.
[3]
[10] It is
common cause that the application was referred five days out of the
prescribed period.
[11] The
reasons for the delay were
·
The erroneous belief by the applicant’s
attorneys that the computation of days for the service of pleadings
in the Labour
Court is the same as that which obtains in the High
Court; and
·
By the time the applicant resolved to
review the award, the offices of the attorneys acting for the
applicant had closed for the
seasonal recess.
[12] There is
also mention in the affidavit, almost as an aside, that the ‘attorney
who previously dealt with
this matter has left the employ of the
Applicant’s attorneys’. This was not pursued in argument.
[13]
Molahlehi J in
Sishuba
v National Commissioner of the SA Police Service
[4]
noted:
‘
The
issue of delays in prosecuting disputes in the Labour Court has
become an issue of concern and judges have expressed their concern
at
a trend that seems to have emerged in this regard. The trend seems to
be developing into a practice or a norm in cases involving
reviews of
arbitration awards.’
[14]
Conradie JA in
Queenstown
Fuel Distributors CC v Labuschagne NO & others
[5]
wrote:
‘…
condonation
in the case of disputes of individual dismissals will not be readily
granted. The excuse for non-compliance will have
to be compelling,
the case for the defect would have to be the kind which will result
in a miscarriage of justice if it were allowed
to stand’.
[6]
[15]
Waglay DJP (as he then was) remarked in
SA
Post Office Ltd v Commission for Conciliation, Mediation &
Arbitration & others
:
[7]
‘
Where
the matter deals with an individual dismissal, this court must be
cautious before exercising a discretion in favour of the
indulgence
sought, because there is an imperative placed upon the speedy and
expeditious resolution of such disputes.’
Reasons
for the delay: the first ground
[16] What is
of concern here is the admission by the applicant’s attorneys
that they were not aware of the need
to file the review application
within the statutory time period. This manifests negligence on the
part of the attorneys, a fact
admitted by Mr Mndezi, counsel for the
applicant.
[17]
The period of delay may be minimal but as LaGrange J remarked in
National
Education Health & Allied Workers Union & others v
Vanderbijlpark Society for the Aged
[8]
in
a similar context though dealing with the negligence of trade unions,
that the LRA has been in existence for more than
15 years and it was
‘reasonable to expect that [parties] ought to be well aware of
the need to act timeously in the interest
of their [clients]…’
and Waglay DJP in
SA
Post Office
[9]
that
‘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’.
[18] It is
inconceivable that a firm of attorneys who assisted the applicant in
completing the CCMA form referring a
dispute to the CCMA, lodged the
form on his behalf, requested an arbitration after a failed
conciliation and represented him at
the arbitration hearing was
oblivious to the requirement of six weeks stipulated in s 145(1)(a)
of the LRA for the launching of
a review application. Clearly, the
attorneys had been grossly remiss in not filing the review
application timeously. To hold otherwise
would be to connive at the
maladroitness of attorneys, and trade unions for that matter, and
perpetuate a cavalier attitude to,
and a contemptuous disregard for,
legislated time periods.
[19]
Can the negligence of the attorneys be imputed to the applicant? It
is established law that a party cannot escape
the negligence of his
representative.
[10]
[20]
In
SA
Post Office
[11]
the
learned judge confirmed that in an application for condonation, a
party cannot use the negligence of its legal representative
as a
reason for failing to adhere to the statutory time period.
[21]
The court in
Superb
Meat Supplies CC v Maritz
[12]
reminded
us that:
‘
It
has never been the law that invariably the litigant will be excused
if the blame lies with the attorney. To hold otherwise might
have a
disastrous effect upon the observance of the rules of this court and
set a dangerous precedent. It would invite or encourage
laxity on the
part of practitioners. The courts have emphasized that the attorney,
after all, is the representative whom the litigant
has chosen for
himself, and there is little reason why, in regard to condonation of
a failure to comply with a rule of court, the
litigant should be
absolved from the normal consequences of such a relationship, no
matter what the circumstances of the failure
are.’
Thus,
the applicant cannot even rely on the tardiness of his
representatives to justify the delay.
Reasons for the
delay: the second ground
[22] On the
second ground of condonation relating to the seasonal shut down of
the attorneys’ offices, the applicant
makes bald allegations
without providing any factual details of when the applicant decided
to review the award, when he went away
and the date and period for
which the attorneys’ offices were closed. There is also an
apparent inconsistency in the averment
made in paragraph 8.3 and
paragraph 8.5.2 of the founding affidavit. In the former it is
alleged that when the applicant ‘gave
the go ahead’ to
proceed on review, the applicants’ office were closed. There is
no mention of the applicant being
‘away’. In paragraph
8.5.2 it is claimed that it was ‘not practical for the
Applicant to meet with its (sic)
attorneys of record owing to the
fact that the Applicant was
already away
and the Applicants’
attorneys of records’ (sic) offices were closed at the time’.
(emphasis added)
[23] More
importantly, the applicant, in proceedings before the CCMA, gave his
contact details as those of his attorneys.
Ms Mfenyana, listed as a
director on the letterhead of the applicant’s attorneys,
represented the applicant at the arbitration
hearing, was the contact
person to whom the arbitration award was sent by, what appears to be,
facsimile by the CCMA and was the
attorney who signed the notice of
motion for the review application. If the award was received on 1
December 2010 there is no explanation
as to what happened between
then and the closure of the offices.
[24] The
explanation for the delay is neither acceptable nor plausible. The
ignorance of the applicant’s attorneys
is egregiously
appalling. When a person holds herself out to be an attorney she is
representing to the person who engages her services
that she is not
only competent but also knowledgeable in the essentials of the law. A
client reposes absolute trust in an attorney
to conduct his case with
a degree of diligence, care and professionalism. To simply assume
that the time period for a review in
the Labour Court is the same as
that in the High Court is woefully negligent. Furthermore, the
applicant cannot rely on the negligence
of his attorneys.
[25]
The applicant has not given a satisfactory explanation for the late
filing of his statement of claim that would
justify the court
exercising its judicial discretion in his favour.
[13]
This should be enough to refuse the application for condonation
[14]
.
[26]
However, for the sake of completeness, I will consider the prospects
of success and the factor of prejudice.
Prospects of
success
[27]
The correct enquiry, said the court in
Seatlolo
& others v Entertainment Logistics Service (A division of Gallo
Africa Ltd)
[15]
,
is ‘whether the applicants would succeed in the main action if
the facts pleaded by them in their condonation application
were
established at trial’.
[28] The only
aspect of the commissioner’s award that the applicant
challenges is the awarding of two months’
compensation ‘in
the face of the evidence (sic) before him pointing to
reinstatement into the same or similar position
for the Applicant’.
[29]
The applicant argued that once a dismissal is found to be
substantively unfair, the commissioner is
obliged to consider the
provisions of section 193 and order reinstatement unless the
exceptions delineated in section 193(2) are
applicable.
[30]
Section 193 provides:
(1)
If the Labour Court or an arbitrator
appointed in terms of tis Act finds that a dismissal is unfair, the
Court or the arbitrator
may-
(a)
order the employer to reinstate the
employee from any date not earlier than the date of dismissal;
(b)
order the employer to re-employ the
employee, either in the work in which the employee was employed
before the dismissal or in other
reasonably suitable work on any
terms and from any date not earlier than the date of dismissal; or
(c)
order the employer to pay compensation to
the employee.
(2)
The Labour Court or the arbitrator must
require the employer to reinstate or re-employ the employee unless-
(a)
the employee does not wish to be reinstated
or re-employed;
(b)
the circumstances surrounding the dismissal
are such that a continued employment relationship would be
intolerable;
(c)
it is not reasonably practicable for the
employer to reinstate or re-employ the employee; or
(d)
the dismissal is unfair only because the
employer did not follow a fair procedure.
[31]
It will be useful to quote the commissioner’s finding in full:
‘
The
primary remedy for substantively unfair dismissal is reinstatement
subject however to section 193(2) of the LRA. It is common
cause that
the Applicant’s post was made redundant and therefore it is not
reasonably practicable to reinstate him. It is
in dispute that the
relationship of trust has broken down and I do not rely on this
factor. Compensation is the appropriate remedy.
The applicant’s
period of service, clean record and relative seniority are taken into
account as well as the fact that he
was guilty of misconduct which
has an element of dishonesty. Although compensation is a solatium to
an employee it should not be
a succour to a wrongdoer. Compensation
equivalent to 2 months (sic) salary would be just and equitable…’
[32]
It would appear that just before the dismissal of the applicant, the
employer had started the
process relating to dismissals for
operational reasons. The post that the applicant occupied was to be
made redundant.
[33]
In her closing arguments, the applicant’s representative had
conceded that his position
had become redundant but argued, without
having elicited this in evidence, that he could have been placed
elsewhere. Effectively,
the applicant sought a reinstatement.
[34] The
Constitutional Court in
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation Mediation &
Arbitration & others
[16]
confirmed
that it ‘is trite law that the power to grant a remedy in s 193
is by its nature
discretionary…’
[35]
In
Mediterranean
Textile Mills (Pty) Ltd v SA Clothing & Textile Workers Union &
others
[17]
the
Labour Appeal Court said:
‘
It
is notable that in terms of the earlier decisions, s 193(2) was
construed as placing an onus on the employer to establish the
existence of any of the non-reinstatable conditions, but since
Equity
Aviation
there has been a
constitutional paradigm shift in this regard. Rather than departing
from the premise of a legal onus, the focal
point and overriding
consideration in this enquiry should be the underlying notion of
fairness between the parties and that “[f]airness
ought to be
assessed objectively on the facts of each case bearing in mind that
the core value of the LRA is security of employment.
In further
amplification, the Constitutional Court in
Billiton
Aluminium SA Ltd t/a Hillside Aluminium & others
[(2010)
31 ILJ 273 (CC)] stated:
“
The
remedies awarded in terms of s 193 of the LRA must be made in
accordance with the approach set out in
Equity
Aviation.
That approach is based on
underlying fairness to both employee and employer. It would introduce
unwanted and unnecessary rigidity
to saddle an enquiry into fairness
with notions of legal onus.”’
The
court then concluded at para 30:
‘…
at
the conclusion of each case it remains the responsibility of the
court or the arbitrator to determine whether or not, on the
evidentiary material properly presented and in the light of the
Equity
Aviation
principle,
it can be said that the reinstatement order is justified. In other
words, even in a situation such as the present, where
no specific
evidence was canvassed or submissions made during the trial on the
issue of the non-reinstatable conditions, the court
or the arbitrator
is not only entitled but, in my view, is obliged to take into account
any factor which in the opinion of the
court or the arbitrator is
relevant in the determination of whether or not such conditions
exist.’
[18]
[36]
The court in
Trio
Glass t/a The Glass Group v Molapo NO & others
[19]
remarked
that while reinstatement is a primary remedy for a substantively
unfair dismissal, it is not a compulsory remedy.
[37]
At the arbitration hearing, the employer relied on two grounds to
rebuff any suggestion of the
applicant’s reinstatement.
[38]
The first was that the trust relationship between the applicant and
the employer had broken down.
This was attested to by Mr McGregor,
the witness for the employer, in his evidence-in-chief and repeated
at least thrice, in cross-examination.
Though the commissioner had
ignored this evidence, it was never challenged by the applicant.
[39]
The second was that the employer had undertaken an extensive
restructuring exercise which rendered
the applicant’s post
redundant. In this respect, a timorous attempt was made by the
applicant to equate the restructuring
process with his dismissal.
[40]
The seriousness of the misconduct also has an impact on what would be
an appropriate remedy.
[20]
In
weighing his options, the commissioner noted that the applicant ‘was
guilty of misconduct which has an element of dishonesty’.
It
was not controverted by the applicant that his conduct did have ‘an
element of dishonesty’. Our courts do
certainly ‘place a
high premium on honesty in the workplace’.
[21]
[41]
The reinstatable conditions did not exist and the commissioner had
not acted unfairly in awarding
compensation.
Prejudice
[43]
In dealing with the factor of prejudice, the applicant argued that a
refusal of condonation will
deprive him of his constitutional right
to access to the court. The failure to adhere to statutorily
prescribed time limits must
axiomatically inhibit his right to seek
justice, especially if the applicant or his representatives are to
blame.
[22]
To hold otherwise
would simply subvert the orderly conduct of litigation.
[40]
In addition, Molahlehi J in
Balmer
& others v Reddam (Bedfordview) (Pty) Ltd
[23]
said
that in deciding prejudice, a party seeking condonation must show in
what way the other party would not suffer prejudice if
condonation
were granted’. The applicant has not shown what impact the
granting of condonation would have on the employer.
[41]
Condonation is an indulgence to be granted by a court exercising its
discretion premised on the
facts and the law. There is neither an
acceptable reason for the delay nor any prospects of success. In
these circumstances, the
application for condonation must be refused.
[42]
Neither party asked for costs in this
application. Accordingly no such order is made.
Order
1.
The application for condonation is
dismissed.
2.
There is no order as to costs.
_______________________
Seedat
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Advocate M Ndziba
Instructed
by:
KNT Attorneys
RESPONDENT:
Attorney D Mer
Instructed
by:
Fluxmans Attorneys
[1]
1962
(4) SA 531 (A)
[2]
[1999]
3 BLLR 209
(LAC) para 10
[3]
see
too,
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A)
[4]
(2007)
28 ILJ 2073 (LC) para 8
[5]
(2000)
21 ILJ 166 (LAC) para 24
[6]
see
Moroka
v National Bargaining Council for the Chemical Industry & others
(2011)
32 ILJ 667 (LC)
[7]
(2011)
32 ILJ 2442 (LAC) para 20
[8]
(2011)
32 ILJ 1959 (LC) para 9
[9]
Supra
note 7 para 18
[10]
Saloojee
v Minister of Community Development
1964
(2) SA 135
(AD);
Xayiya
v African National Congress
[2000]
4 BLLR 477
(LC);
First
National Bank v CCMA
[2000]
12 BLLR 1429
(LC);
A
Hardrodt (SA) (Pty) Ltd v Behardien
(2002)
23 ILJ 1229 (LAC);
Superb
Meat Supplies CC v Maritz
(2004)
25 ILJ 96 (LAC);
GIWUSA
obo Hyeneke v Klein Karoo Korporasie Bpk
(2005) 26 ILJ 1083 (LC
[11]
Supra
note 7 para 21
[12]
(2004)
25 ILJ 96 (LAC) at 100I-101A. See too,
Silplat
(Pty) Ltd v Commission for Conciliation Mediation & Arbitration
& others
(2011)
32 ILJ 1739 (LC)
[13]
Balmer
& others v Reddam (Bedfordview) (Pty) Ltd
(2011)
32 ILJ 2121 (LC) para 13
[14]
SA
Post Office
supra
note 7 para 22
[15]
(2011)
32 ILJ 2206 (LC) para 24
[16]
(2008)
29 ILJ 2507 (CC) para 48
[17]
(2012)
33 ILJ 160 (LAC) para 28
[18]
SBV
Services (Pty) Ltd v Commission for Conciliation Mediation &
Arbitration & others
(2013)
34 ILJ 996 (LC) para 33
[19]
(2013)
34 ILJ 2662 (LC) para 51
[20]
Transnet
Ltd v Commission for Conciliation Mediation & Arbitration &
others
(2008)
29 ILJ 12 89 (LC) at 1300F-G
[21]
Miyambo
v CCMA & others
(2010)
31 ILJ 2031 (LAC)para 17:
Sappi
Novoboard (Pty) Ltd v Bolleurs
(1998)
19 ILJ 784 (LAC);
Theewaterskloof
Municipality v SA Local Government Bargaining Council (Western Cape
Division) & others
(2010)
31 ILJ 2475 (LC) para 21
[22]
Seatlolo
& others v Entertainment Logistics Service (A division of Gallo
Africa Ltd)
(2011)
supra note 20 para 25
[23]
Supra
note 18 para 10