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[2014] ZALCJHB 24
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South African Revenue Services v Ndhlovu; In Re: Ndhlovu v South African Revenue Services (JS169/2012) [2014] ZALCJHB 24 (7 February 2014)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR
COURT OF SOUTH AFRIICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
No. JS169/2012
In the
matter between:
SOUTH
AFRICAN REVENUE
SERVICES Applicant
and
PORTIA
KAWULILE
NDHLOVU Respondent
In re:
PORTIA
KAWULILE
NDHLOVU Applicant
and
SOUTH
AFRICAN REVENUE
SERVICES Respondent
Delivered:
07 February 2014
JUDGMENT
ON LEAVE TO APPEAL
VISAGIE AJ
[1]
This
is an application for leave to appeal
against
a judgment delivered by this Court on 15 August 2013. The application
for leave to appeal was filed with this Court on 5
September 2013.
Although a notice of intention to oppose was filed on 10 September
2013 by the Respondent, no opposing submissions
were filed. The
Applicant's written submissions were filed on 16 September 2013.
[2]
The
Applicant's first ground is the contention that the Court failed to
take into account the Respondent's unexplained delay in
filing her
statement of claim. In support of this contention, the Applicant
argued that apart from averring that the Respondent's
Union advised
her against proceeding with the claim and that she then approached a
private attorney (Larry Dave Attorneys), no
explanation for a period
of approximately four months was provided by the Respondent.
[3]
In
my view, there is no merit to the aforementioned contention of the
Applicant. When the CCMA certified the Respondent's dispute
as
unresolved on 21 October 2011, the Respondent explained that she was
called to a disciplinary hearing on 7 November 2011. The
recommendation of the chairperson was for her to be given a final
written warning and the chairperson recommended corrective steps.
She
explained that given the nature of the disciplinary outcome, she
decided against proceeding with the unfair discrimination
dispute in
the hope that the recommendation would have resolved the issues. It
was common cause that after the parties received
the chairperson's
recommendation, the Applicant was informed by the Respondent's Union
that the Respondent would accept the written
warning and that the
Respondent was not appealing the recommendation.
[4]
It
was only when the alleged abusive conduct of the management of the
Respondent became unbearable in November 2011 that the Respondent
sought advice first from the CCMA and then from her Union as to how
to take the matter further. So it is entirely incorrect to
state that
the only explanation provided was the Respondent's approaches to the
two Unions and Larry Dave Attorneys.
[5]
Faced
with the above explanation, the Court found the Respondent's
explanation plausible. The Court was satisfied that the Respondent
provided an explanation for the whole period of the delay. I do not
think that
Moila
[1]
is authority for the contention that an application for condonation
must in detail explain each day of the period of delay in order
for
such an applicant to satisfy the requirement that an acceptable
explanation be provided in order for condonation to be granted.
[6]
The
next ground of appeal is the contention that this Court erred by not
drawing an adverse inference from the fact that the Respondent
did
not deal with the prospects of success fully. In support of this
contention, the Applicant argued that the Respondent failed
to state
the alleged grounds of discrimination and that the Applicant brought
this to the Respondent's attention by filing an exception.
Notwithstanding this exception, according to the Applicant, the
Respondent failed to remedy the alleged shortcomings in her statement
of claim. The Applicant further argued that the Respondent only made
bold allegations in her statement of claim and that such averments
were insufficient to establish unfairness. The Applicant cited
various authorities in support of this contention. In further
support,
the Applicant argued that based on the authority of
NUM
and Others Western Holdings Gold Mining,
[2]
in the absence of a reasonable explanation for the delay the
prospects of success need not even to be examined and condonation
should have been refused.
[7]
As
the Court has already stated in the judgment and repeated above, the
Court found the explanation by the Respondent as plausible.
Any
authority cited by the Applicant containing the well-established
principle that in the absence of a reasonable explanation
the
prospects of success need not be considered is not applicable. What
is more, based on the authority of
Gaoshubelwe
[3]
,
the
Court found that the Respondent needed only to show the likelihood or
chance of success in the main case when dealing with her
prospects of
success. The Court was satisfied that the Respondent showed the
likelihood or chance of success in her main claim.
[8]
A
further ground relied upon by the Applicant is the contention that
the Court erred by relying on the fact that the Respondent
was
represented by a trade union and that this provided some
justification for her lateness. In support, the Applicant cited the
well-established authority of
Saloojee
and Another NNO v Minister of Development.
[4]
This ground, in my view, is similarly misplaced. The Court did not
understand the Respondent's explanation for the delay to have
been
that the delay was caused due to the negligence of any one of the
Unions. Her explanation was that she was assisted and advised
by her
union in dealing with her dispute from the time that she referred it
to the CCMA up until the time that she filed her statement
of claim
with the Court. The reference to the two unions and to Larry Dave
Attorneys was simply to show to the Court the attempts
that the
Respondent made in order to pursue her claim and try and deal with
the dispute. It was the finding of the Court that the
Respondent
cannot be faulted for trying to seek advice on issues which she, as a
lay person, would have little knowledge of. It
was never the Court's
view that the delay was caused by the negligence of the Respondent's
representatives. For these reasons,
this ground has no merit.
[9]
The
Applicant also contends that the Court failed to address the issue of
prejudice in the judgment, or at all. In exercising its
discretion to
grant condonation, the Court considered all the facts put before it.
The Court weighed the Respondent's clear intentions
and attempts to
have her dispute heard by the CCMA and then dealt with by the Court
with the Applicant's contention that there
was no merit to the
Respondent's dispute and that her statement of claim was arguably
inadequate. Against this backdrop, the Court
found the Respondent's
explanation for the delay a reasonable explanation and, although the
Court may not have been entirely convinced
of her prospects of
success, having determined that it was fair it did not escape the
Court that the Applicant had a second chance
of raising the alleged
inadequacy, if any, in the statement of case when the main matter was
to be heard. For these reasons, it
was this Court's view, even though
not pertinently expressed in the judgment, that the prejudice to the
Respondent for not granting
condonation outweighed the prejudice that
the Applicant may be faced with by stepping into the main case. In
the case of
NUM
v Western Holdings Gold Mining,
[5]
the Labour Court had the following to say about the approach to be
adopted in considering applications for condonation.
‘
The
approach to be adopted in considering the applications
well-established. 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. These facts are
inter-related. They are not individually decisive. What is needed is
an objective conspectus of all the facts. 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 attempt to compensate for a long delay … an
unsatisfactory and unacceptable explanation for delay
remains so,
whatever the prospects of success on the merits.’
[10]
As
NUM
and
authorities on which it relies clearly indicate, the factors that a
court considers in granting condonation are inter-related.
As such, a
consideration of the reasonableness of an explanation for the delay
by its very nature has an element of fairness to
it.
[11]
The
last ground of appeal is the Applicant's contention that this Court
erred by awarding costs against the Respondent. In support
of this
contention, the Applicant argued that where a litigant seeks
condonation it is essentially seeking the Court to grant an
indulgence. As a result, the Court may order the successful applicant
to pay the costs of the opponent. The Applicant's further
argument
was that the opposition was imminently reasonable and because the
Applicant failed to make out a proper case in her founding
affidavit,
the Court should have ordered the Respondent to pay the Applicant's
costs.
[12]
In
the case of
Call
Guard Security Services (Pty) Ltd v Transport and General Workers
Union and Others,
[6]
this Court had the following to say,
‘
It
seems to me that, when this Court is asked to make an order of costs,
the enquiry should be: having regard to all the relevant
factors in
this matter would it accord with the requirements of law and fairness
to make an order of costs and, if it would, what
costs order should
be made? If the answer is that it would not accord with the
requirements of law and fairness to make a costs
order, then this
Court should not make any costs order.’
[13]
Further
on in the judgment, the Court adopted the approach of the Appellate
Division (as it then was) on the issue of costs in the
case of
NUM
v East Rand Gold and Uranium Co Ltd.
[7]
While listing a number of considerations to be taken into account,
the Appellate Division also stated that
"the
general rule of law that in the absence of special circumstances
costs follow the event is a relevant consideration. However,
it will
yield in consideration of fairness required."
[8]
As
indicated in the judgment, both parties were represented by Counsel
to argue their cases and asked for costs in the event of
success.
There were no special circumstances for the Court not to allow the
general rule for costs to follow the event to be applicable.
Moreover, as explained in the judgment, the Court was of the view
that there was little merit in opposing the condonation application
of the Respondent. In these circumstances there was no consideration
of fairness that could detract from the general rule of law
relating
to costs.
[14]
As
the authorities clearly indicate, the granting of condonation is a
discretion exercised judicially by this Court. This Court
found that
the Respondent provided a reasonable explanation for the delay and
had fair prospects of success. In the result, the
discretion in
fairness of the Respondent was granted. For these reasons there are
no prospects that another Court could come to
a different conclusion
on appeal.
[15]
For
these reasons, I make the following order.
[16]
Leave
to appeal is refused.
______________________
Visagie AJ
Acting Judge of the Labour Court of South Africa
[1]
Moila v Shai N.O. and Others
2007 (28) ILJ 1208 LAC
[2]
1994 (15) ILJ 610 (LAC)
[3]
(
2009) 30 ILJ 347 (LC) at para 27
[4]
1965 (2) SA 135A.
[5]
1994 (15) ILJ 610 (LAC) at 613B-E.
[6]
(1997) 18 ILJ 380 (LC) at 389G to 390C.
[7]
[1991] ZASCA 168
;
1992 (1) SA 700
(A).
[8]
See paragraph 1242E.