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[2014] ZALCJHB 2
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Fisher v Marcus NO and Others (JR1906/10) [2014] ZALCJHB 2 (17 January 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH ARICA, JOHANNESBURG
JUDGMENT
CASE
NO: JR1906/10
Not
reportable
DATE:17
JANUARY 2014
In
the matter between:
FISHER
SIDNEY, Applicant
And
MARCUS.
MICHAEL
N.O.
…........................................................
First
Respondent
THE
METAL AND ENGINEERING
.......................................
Second
Respondent
INDUSTRIES
BARGANING COUNCIL
WEST
RAND ENGINEERING (PTY) LTD
...............................
Third
Respondent
Heard:
25 July 2013
Delivered:
17 January 2014
SUMMARY:
The
applicant filed the review application six weeks late and the record
of the arbitration hearing some two years after the mechanical
recording was made available. The reason for these delays was lack of
funds to prosecute the review application. The applicant
pleaded that
the most important portion of the arbitration hearing which is
crucial for determining the dispute between the parties
does not form
part of the record as that part was either not recorded or that the
relevant recordal has gone missing. No reconstruction
of the record
could be undertaken by use of the arbitrator’s notes.
Held
that, the lack of funds alone, without special circumstances, is not
a valid reason to condone the inordinate delays to prosecute
the
review application. It was held also that the applicant has failed to
show reasonable prospects of success where the important
part of the
record that is crucial for the resolution of the dispute is missing.
Held
that, for these two reasons, that is, the late filing of the
application and the record of proceedings, and lack of prospects
of
success, condonation is refused.
JUDGMENT
MALINDI
AJ
Introduction
[1]
On 11 August 2010, the applicant filed a notice of motion, seeking an
order that the arbitration award issued by Marcus, the
first
respondent, under The Metal and Engineering Industries Bargaining
Council (MEIBC), the second respondent, under case number
MEGA9591
delivered on 13 May 2010 be reviewed and set aside, and
simultaneously that the late filing of his application be condoned.
[2]
The applicant received the award on 17 May 2010. The applicant was
required to file his review application on or about 28 June
2010. The
application is approximately 6 weeks and a few days late.
[3]
The applicant submits that the application is not inordinately late
and that its lateness is not due to any deliberate delay
on his part.
The reasons for the lateness are that since his dismissal by West
Rand Engineering Works, the third respondent, he
has been unemployed
and therefore unable to pay for the services of a legal
representative to prosecute the review application.
Background
facts
[4]
The applicant at all times material hereto was a member of Legal Wise
but was not satisfied with their services and therefore
sought to
transfer his file from Legal Wise Attorneys to his current attorneys
of record, D W Morgan Attorneys.
[5]
His attorneys would not commence with any work until Legal Wise had
paid into their account the requisite fees. This payment
was finally
processed on 16 July 2010.
[6]
In addition, the applicant had to settle outstanding fees to his
attorneys of record from previous representation when they
successfully represented him in a review of the second respondent’s
refusal of condonation for the late referral of the dispute
to the
second respondent.
[7]
The applicant was able to conduct the first consultation with Mr
Morgan on 21 July 2010 and preparations for the application
could
commence on 22 July 2010 after the applicant had settled his
outstanding fees.
[8]
In his supplementary affidavit filed on 7 August 2012, the applicant
states that the second respondent made the record of the
arbitration
proceedings available on or about 13 August 2010 but that due to lack
of financial ability he was unable to cause the
mechanical recording
to be transcribed, hence the delivery of the record took some 2
years. It would have caused him R4 200,33
to have the record
transcribed.
[9]
The transcription of the record was completed on or about 6 December
2011, at which stage the applicant realised that the record
was
incomplete. After many attempts to obtain outstanding CDs, including
a letter from his attorneys dated 7 March 2012, he was
advised that
no further CDs could be found.
[10]
Eventually, on 13 April 2012, the applicant requested the first
respondent’s notes which were obtained on 18 April 2012.
The
notes were found to be “completely illegible.”
[11]
Proposals were made to have a meeting to reconstruct the record with
the first respondent. On 16 July 2012, the second respondent
advised
the applicant that the first respondent was no longer accredited by
the CCMA and no longer a commissioner of the second
respondent. The
only option, he was advised, was to bring proceedings to compel the
first respondent to reconstruct the proceedings.
As the applicant has
limited funds, bringing such an application would have been too
costly for him. He therefore advised his attorney
to proceed with
this application on the basis of the incomplete record.
Prospects
of success
[12]
Regarding the grounds for review, the applicant states that his and
the third respondents’ versions of what transpired
on or about
20 June 2005, and as to whether the applicant justifiably switched
off two of several machines which were running because
they were
unattended, compared to the third respondent’s version that
these machines were running because there was an urgent
job to be
done, which the applicant says he had no knowledge of, ‘are
mutually destructive and are critical to the events
which took place
subsequently, ultimately leading to my dismissal’.
[13]
The applicant states that the evidence of the third respondent’s
first witness on the first day of the proceedings does
not appear on
the record. He states that this has prejudiced him in that this
evidence was the most important. Furthermore, the
evidence
corroborating that of the third respondent’s first witness does
not appear on the record either.
[14]
The applicant emphasises that ‘the fact that the missing
portions of the record are of critical importance’.
[15]
The third respondent’s answering affidavit states as follows:
‘
11.
On or about 20 June 2005, the Applicant was asked by the foreman Mr
Boshoff to work overtime as there was an urgent job which
needed to
be completed.
12.
The employees of the third respondent work until 16h00 on any given
day. As the foreman left work at 16h00 on 20 June 2005,
the applicant
deliberately switched off the machines at 15h10 which were set to
complete the urgent job.
13.
The applicant thereafter proceeded to read the newspaper until his
overtime shift was over’.
[16]
In his replying affidavit, the applicant states that there was no
mention of an urgent job to be completed.
Analysis
[17]
Regarding the incompleteness of the record, the applicant submits,
first, that while it has been held that a failure to reconstruct
a
record may result in the dismissal of a review, this is not
appropriate in the present matter. I was referred to the cases of
Liwambano v Department of Land Affairs and Others
1
and Mabogoane v CCMA and Others
2
in this regard. Alternatively, that the matter be remitted to the
second respondent for a fresh adjudication.
[18]
In Antoinette du Plessis v Wits Health Consortium (Pty) Ltd
3
Molahlehi J said the following:
‘
The
delay in the present matter whilst not excessive it is not
insignificant. The explanation is grossly unsatisfactory. The
applicant
says that she could not file her statement of case because
she did not have funds. She in this respect in the heads of argument
relies on the decision of this court in Gaoshubelwe and Others v
Pieman’s Pantry (Pty) Ltd where the court accepted as
reasonable
the explanation that the delay was caused by lack of funds
on the part of the applicants...
In
other words, when pleading lack of funds as the cause of delay, the
applicant needs to provide more than a mere claim that the
reason for
the delay is lack of funds. In this respect, the applicant has to
take the court into his or her confidence in seeking
indulgence by
explaining “when” not only he or she finally raised funds
to conduct a case but also how and when did
she receive those
funds…’.
[19]
In Michael Mkhize v CCMA and Others
4
Gush J found that a delay of 5 weeks to launch a review application
‘is a substantial and excessive delay’.
[21]
I have no doubt that the sole reliance on lack of funds for the delay
in both launching the application for review and securing
a
transcript of the record and providing a copy thereof to the
respondent does not constitute valid grounds for condonation. This
was conceded by Mr Morgan, appearing for the applicant. Special
circumstances need to be pleaded in order for a lack of funds to
constitute a proper ground for condonation for the late compliance
with the provisions of the rules. The fact that the applicant
was at
the relevant times a member of Legal Wise, which provides in-house
legal representatives to its members, or provides a portion
of the
legal fees to the legal representative of a member’s choice,
severely weakens the applicant’s claim that lack
of funds was
the only cause for the delay in prosecuting this matter.
[22]
Even when prospects of success on review are considered, this factor
does not come to the applicant’s assistance. The
applicant has
conceded that the missing portions of the record are very important
to the adjudication of this matter. He has stated
that his and the
third respondent’s version regarding whether his dismissal was
fair are mutually destructive. In the circumstances,
in the absence
of a full record of the arbitration proceedings, the dispute between
the parties is incapable of resolution on the
record. Hence it was
stated in JDG Trading (Pty) Ltd t/a Russels v Whitcher N.O. and
Others
5
:
‘
An
applicant who seeks relief in a review on the basis of a defective
record runs the risk that it will be unsuccessful on that
ground
alone. This must be based on the simple principle that evidence at
the heart of the attack on the decision of a commissioner
must be
“properly available” to the review in court’.
[23]
The applicant has run such risk and his application would fail on
this ground alone.
[24]
It was submitted by the applicant that in view of the inadequate
record before court the matter should be remitted to the second
respondent. I find this proposition particularly inappropriate in the
circumstances where the dismissal took place already in 2005
and that
the applicant is responsible for the delay of more than two years in
prosecuting this matter. It is in the interest of
the third
respondent that this matter reaches finality . I therefore, decline
to remit the matter to the second respondent.
[25]
The application therefore stands to be dismissed. I therefore make
the following order:-
1
The application for condonation is dismissed.
2
There is no order as to costs.
Malindi,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicants: Mr DW Morgan (Attorney)
Instructed
by D W Morgan Attorneys
For
the Respondents: Mr B Joubert
Instructed
by Joubert Attorneys
1
[2012]
33 ILJ 1862 (LC)
2
[2012]
33 ILJ 1874 (LC)
3
JS
122/2011 [2012] ZALC JHB 53 (14 June 2012) at para 14 and 16.
4
Case
no. D95/2011 [2013] ZALCD (13 June 2013).
5
[2005] ZALC 1
;
[2001]
3 BLLR 300
(LAC)