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[2014] ZALCJHB 125
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Tshidziambi v University Of Venda (JS1145/12) [2014] ZALCJHB 125 (28 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
REPORTABLE
CASE NO: JS 1145/12
TSHIDZIAMBI
TSHIVHASE-PHENDLA
Applicant
and
UNIVERSITY OF VENDA
Respondent
Heard:
04 September 2013
Delivered
:
28 January 2014
JUDGMENT
TLHOTLHALEMAJE, AJ
Introduction:
[1]
This is an opposed application for
condonation for the late filing of the Applicant’s statement of
case. The Applicant’s
main claim is based on an alleged
automatically unfair dismissal on the ground of sex as contemplated
in section 187(1)(f) of the
Labour Relations Act (The LRA).
Secondly, she also claimed to have been discriminated against as
contemplated in section
6 of the Employment Equity Act 55 of 1998
(The EEA). In the alternative, she also alleged that she was
unfairly dismissed
as contemplated in section 188 read together with
section 191(5) of the Act.
Background:
[2]
The Applicant, a Professor, was initially
employed by the University of Pretoria as a Senior Lecturer and
Director of UNESCO-IICBA
on 1 January 2001. Whilst in that
position, she was then appointed onto the Council of the Respondent
in 2005. On 6
December 2006 she was appointed by the Respondent
as Professor in its Department of Teacher Education. On 1
February 2007
she was appointed in the Respondent’s faculty of
Human and Social Sciences (Education Department). On 1 October
2008,
she was appointed as Dean of the Respondent’s School of
Education. She remained in that position until her dismissal
on
1 November 2011.
[3]
The events that led to the Applicant’s
dismissal can be summarised as follows;
In
June 2010, the Respondent had appointed Deloitte and Touche
(Deloitte) to conduct investigations into alleged irregularities
pertaining to the awarding of a tender and appointment of an entity
known as Clean Shop. This entity was appointed to provide
cleaning services at the Respondent. Clean Shop was appointed
for the periods 14 May 2007 to July 2007 and 16 August 2007
to 28
February 2009. The Applicant was interviewed by two individuals
from Deloitte on 07 September 2010 and was informed
that its purpose
was to investigate allegations that she had received a bribe from
Clean Shop in exchange for the latters tender
being favoured by the
Respondent’s Council.
[4]
The Applicant had conceded during the
interview that she had in May 2006, whilst still employed by the
University of Pretoria, met
one Trevor Mulaudzi, who was the sole
owner of Clean Shop, and another person named Moloto. The two
individuals were referred
to her by one Neluheni, an Administrative
Officer employed by the Respondent. She had however contented
that the meeting
with the two individuals from Clean Shop at the time
was merely for them to look around the bathrooms of the University of
Pretoria,
as this company had never cleaned in a University before.
She had denied any allegation of impropriety in the granting of
the
tender to Clean Shop.
[5]
Deloitte had submitted its report on 05
November 2010. Amongst its findings was that the process of the
appointment of Clean
Shop was irregular in that Mulaudzi had
improperly influenced the Registrar (Nemadzivhanani) and the
Applicant to ensure that Clean
Shop was appointed to provide cleaning
services at the Respondent. It was further recommended that
disciplinary action be
taken against the Applicant for agreeing to
meet with the representatives of Clean Shop without following
procedures and for allegedly
accepting a bribe from Mulaudzi.
The Applicant was charged with misconduct on 15 February 2011 and
suspended on 24 April
2011. A disciplinary enquiry was held on
1, 2, 24 and 25 August 2011. Her services were terminated on 1
November 2011.
She had lodged an appeal on 16 March 2012, which
appeal was heard and dismissed on 24 April 2012. The Applicant
statement
of case was filed with the Court on 6 June 2012 even though
it appears to have been served on the Respondent on 22 May 2013.
The
legal framework:
[6]
The discretion of the Court enjoys when considering applications for
condonation derive from the provision of section 191(11)(b)
of the
LRA and also Rule 12 of the Rules of Conduct of Proceedings.
Thus on good cause shown, the Court may condone the non-observance
of
the timeframes stipulated
inter alia
in section 191 of the LRA.
[7]
The
test for granting condonation was articulated in Melane v Santam
Insurance Co Ltd
[1]
in the
following terms;
“
In
deciding whether sufficient cause has been shown, the basic principal
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 therefore, the prospects of
success and the importance of the case. Ordinarily
these facts
are interrelated, they are not individually decisive, save off course
that if there are no prospects of success there
would be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of
what should be a flexible
discretion. What is needed is an objective conspectus of all
the facts. Thus a slight delay
and a good explanation may help
to compensate prospects which are not strong. Or the importance of
the issue and strong prospects
may tend to compensate for a long
delay. And the Respondent’s interests in finality must
not be overlooked”
Expanding
further on the above principles, the Labour Appeal Court in
NUM
v Council for Mineral Technology
[2]
added
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”
The
degree of lateness:
[8]
In her affidavit in support of the
application, the Applicant had averred that the Delay was
approximately four months. In written
heads of argument filed on her
behalf, it was contended that the delay was only 49 days. On the
other hand, the Respondents contention
was that the delay was 150
days.
[9]
In
order to deal with the factual dispute as above, it would be
appropriate to look at the sequence of events as gleaned from the
parties’ pleadings. The Applicant had averred that she had
referred two disputes to the Commission for Conciliation, Mediation
and Arbitration (The CCMA). She did not indicate the dates on which
those cases were referred to the CCMA. She had however made
reference
to a copy of a “Jurisdictional Ruling”
[3]
issued by Senior Commissioner GS Jansen van Vuuren (The Commissioner)
of the CCMA application.
[10]
From that ruling, it is recorded that the
dispute under case no GATW5550-12 pertaining to an alleged unfair
dismissal and section
74(2) of the Basic Conditions of Employment Act
was referred on 2 May 2012. That matter was set down for a con/arb
hearing on 4
June 2012. The Applicant having objected to that
process, the matter was only conciliated and a certificate of
non-resolution was
issued, which reflected the dispute as pertaining
to dismissal due to misconduct.
[11]
In the Commissioners ruling, it is further
recorded that the Applicant had on 22 August 2012 requested
arbitration by filing her
LRA Form 7.13. For the first time, the
Applicant had described the nature of her dispute as relating to
automatically unfair dismissal
and unfair labour practice. The
dispute was set down for arbitration before the Commissioner on 29
October 2012. He had discovered
that the Applicant had referred
another dispute to the CCMA on 22August 2012 under case number
GATW10707-12. This dispute pertained
to an alleged dismissal on
account of having laid charges of sexual harassment against the
Respondent’s Vice-Chancellor.
She had also applied for
condonation for the late referral of that dispute, and had also
claimed that her dismissal was automatically
unfair and further that
she was unfairly discriminated against.
[12]
Following a request by the Applicant’s legal representative at
that hearing that the two disputes should be consolidated,
and
notwithstanding the fact that the condonation application under
dispute GATW10707-12 had not been considered, or the fact that
this
latter dispute had not been conciliated, the Commissioner
nevertheless proceeded to consolidate the two disputes and afforded
the Applicant an opportunity to refer an alleged automatically unfair
dismissal dispute as well as the alleged sexual harassment
matter to
this Court.
[13]
That ruling in terms of which the
Applicant’s matters were consolidated was issued on 30 October
2012. Section 191(11) of
the LRA provides that a referral of a
dispute to this Court for adjudication in terms of subsection 5(b)
must be made within 90
days after the council or a commissioner has
certified that the dispute remained unresolved. In this case, the 90
days will be
calculated from the date that the ruling was issued.
“Day” is defined in the Labour Court Rules and the
Practice Manual
of the Labour Court of South Africa as meaning;
“
any
day other than a Saturday, Sunday or public holiday, and when any
particular number of days is prescribed for the doing of any
act, the
number of days must be calculated by excluding the first day and
including the last day”
[14]
For practical reasons and in order to give
the Applicant the benefit of the doubt, it will be taken that she had
filed her statement
of case on 23 May 2013. On a proper
interpretation of the definition of “day”, the
dies
expired on 11 March 2013. The delay in filing the statement of claim
is there for exactly 50 days. In my view, this delay is indeed
excessive,
albeit
not in the extreme.
The
explanation for the delay:
[15]
To
enable this Court to properly exercise its discretion, a party
seeking condonation must set out all the facts and circumstances
relating to the delay, and most importantly, must provide a
satisfactory explanation and account for each period of the delay.
Any period of delay that is unaccounted for, will result in an
indulgence being refused
[4]
.
Furthermore, it is trite that an application for condonation must be
brought as soon as the party becomes aware of the need to
do so
[5]
.
[16]
As
can be gleaned from her submissions, the Applicant did not file an
application for condonation as soon as she became aware of
the need
to do so. She attributed the failure to do so, or the delay for the
filing of her statement of claim due to the lack of
funds. It was
submitted on her behalf that she had persistently pursued her case
and did not allow time to pass unnecessarily.
It was further
submitted that the Court should accept that lack of funds is a
reasonable explanation, and reference in this regard
was made to
Gaoshubelwe and Others v Pie Man’s Pantry (Pty) Ltd
[6]
.
The Applicant further explained the delays as follows;
[17]
Her current attorney of record, Mr.
Joubert, who had assisted her at the CCMA and her appeal hearing, had
advised her that proving
an automatically unfair dismissal would be
difficult and that she needed an attorney. Joubert had however
explained to her that
he would not assist her on a contingency basis
and that she would have to pay him upfront for his services. After
receipt of the
ruling she had instructed her attorney of record to
take the matter to this Court and to apply for a case number.
[18]
On 02 November 2012 the Applicant had
approached the Legal Aid Board of South Africa for assistance. She
was advised by the Board
on 5 November 2012 that her application for
assistance was successful, and an appointment was made for her to
meet a Sarel Langeveldt
on 30 November 2012. However, on 5 December
2012 she was advised that her application for legal aid was refused
on the grounds
that she did not have reasonable prospects of success.
She had exercised her right of appealing this decision on 10 December
2012,
and was on 25 February 2013 advised that her appeal was
unsuccessful.
[19]
In December 2012 and January 2013, she had
also sought the assistance from the Commission for Gender Equality.
She had also approached
the Law Society of South Africa, and was
referred to Potgieter Marais Attorneys whom she had approached in
February 2013. Despite
the promise of
pro
bono
assistance this did not
materialise. On the advice of the Law Society she had approached
attorneys Adams and Adams in March 2013
to obtain legal advice.
Throughout, she had been in contact with Joubert who had advised her
that a statement of case needed to
be filed after counsel was
briefed, and further that an application for condonation needed to be
filed. Joubert had then found
Adv. Darby to assist the Applicant,
their first consultations took place on 5 March 2013. Adv. Darby had
requested further documents
from the Applicant, and this had resulted
in further delays.
[20]
Further delays were occasioned by Adv.
Darby being ill for two weeks, and it was only on 26 March 2013 that
Adv. Darby could look
into the matter and started drafting papers. On
8 April 2013 Adv. Darby had informed Joubert that further
documentation was still
required. At the same time, another
application had been launched by the Applicant in the High Court.
That case was settled in
May 2013 and some funds had become available
to finalise the statement of case and condonation application. On 25
April 2013 Darby
had required more information from Joubert, and on
10 May 2013 the statement of case was finalised after the required
outstanding
information was obtained. However, it was only on 20 May
2013 after further telephonic consultations and amendments had been
effected
that the Applicant received a copy of the statement of case
and condonation application to sign it.
[21]
In opposing the application, the
Respondent’s contention was that the fact that the Applicant
could not afford legal representation
is not acceptable enough as an
explanation, as there were several avenues available to her. The
Respondent viewed the Applicant
as malicious in persisting with this
matter, and also labelled her a vexatious litigant in view of the
fact Legal Aid had rejected
her application for assistance on account
of her claim lacking prospects of success. Furthermore, it was
submitted that at the
time that the jurisdictional ruling was issued,
the Applicant was legally represented and she knew that she had to
refer her dispute
within 90 days.
[22]
It was further submitted on behalf of the
Respondent that as early as 19 November 2012, the Applicant’s
attorneys of record
had sent correspondence to the Respondent, and
that there was nothing that prevented her from filing her statement
of claim. It
was argued that as the Applicant was always legally
represented, even if she anticipated that her statement might be
filed late,
she could have filed it in any event, or got pro bono
advice.
[23]
It is my view that a lack of funds as an
explanation for a delay in complying with time frames should not
always be regarded as
being reasonable and acceptable. Each case
needs to be looked at in terms of its own circumstances, and an
evaluation should be
made as to whether that explanation should
indeed be acceptable. It is not unusual for unrepresented parties,
especially indigent
and unsophisticated employees who have lost their
jobs to directly approach this Court and lodge their claims by
completing the
standard Form 6. Some of these statements of claim
might in the end appear incomprehensible, but at most, an attempt has
been made
to comply with the prescribed time frames. In most cases,
where the statement of claim is found to be incomprehensible, this
Court
would normally direct the Applicant party to file supplementary
affidavits or an amendment. In most cases where these unrepresented
applicants appear before Court, they would normally be referred to
the
pro bono
office which by all accounts is doing a sterling job in assisting
needy litigants.
[24]
The Applicant in this case on the other
hand cannot by all accounts be described as needy or unsophisticated.
In referring all her
disputes to the CCMA, she had always been
legally assisted, when at that stage there was no need for legal
representation. In as
much as her endeavours to secure the assistance
of the Legal Aid, Law Society and Commission for Gender Equality are
acknowledged,
at the same time, her attorneys of record throughout
had an obligation to advise her that she could have approached the
Court on
her own and timeously filed her statement of claim whilst
pursuing other avenues in securing funds. It was not sufficient for
her
attorneys to simply inform her that her case could not be taken
on account of lack of funds as there were other avenues open to
her
as directly pointed to on behalf of the Respondent.
[25]
As I have already indicated above, the
Applicant could simply have been advised to approach the Court on her
own and filed a statement
of claim on time. Being a Professor, it is
doubted that she would have encountered any difficulties in
completing a simple standard
Form 6. That Joubert attorneys insisted
on some funds before the Applicant could be assisted is beyond
comprehension. In my view,
the delay in this case in filing a
statement can not be attributed to the Applicant’s lack of
funds alone. It was purely
due to bad legal advise or no advice at
all from her attorneys of record, who were more concerned with their
fees than giving the
Applicant proper advice that would cost her
nothing. To this end, given the Applicant’s personal
circumstances, her explanation
in regard to the late filing of the
Applicant’s statement of claim is not regarded as reasonable or
acceptable.
Prospects
of success:
[26]
In pursuing this case, the Applicant has
made serious allegations against the Respondent’s
Vice-Chancellor, Mr Mbati. The
Applicant alleged that from the
commencement of Mbati’s appointment in January 2008, the latter
had made sexual suggestions
and conducted himself in such a manner
towards her. The Applicant further alleged that she commenced a
romantic relationship with
Mbati with effect from May 2008. In
October 2008 the Applicant was appointed Dean of the School of
Education.
[27]
A further serious allegation the Applicant
had levelled against Mbati was that the latter had on 24 February
2009, raped her, resulting
in her undergoing a HIV test on 27
February 2009. Following a report issued by Deloitte on 05 October
2010 regarding the allegations
in respect of the Clean Shop tender,
and further recommendations that the Applicant be subjected to
disciplinary action, she had
then in December 2010 terminated her
romantic liaison with Mbati. Thereafter she had refused to take his
telephone calls until
when he summoned her to his office in February
2012, and informed her of the intention to charge her with
misconduct.
[28]
On 15 February 2011 the Applicant was
furnished with a “charge sheet” further charges were
added on 17 February 2011.
On 1 March 2011 she had received a letter
inviting her to show cause why she should not be suspended. On 12
April 2011 she had
received a formal letter of suspension. Additional
charges were levelled against her in July 2011 and her suspension was
extended
in August 2011. On 14 September 2011 she had lodged a sexual
harassment complaint against Mbati. On 1 November 2011 she was issued
with a letter of termination of her services. This was followed by
the full outcome of a disciplinary hearing on 9 November 2011.
An
appeal hearing was held and her dismissal confirmed on 24 April 2012.
In between these events, reports surrounding accusations
of criminal
conduct were levelled against the Applicant in the daily “Sowetan”.
The Applicant’s main contention
was that she has not been
charged by the Respondent’s Council and that as a result of
these events, she has shown that
prima
facie
she has prospects of success in
her claim against the Respondent on the grounds of automatically
unfair dismissal.
[29]
The Respondent’s contention was that
a disciplinary hearing was held on 1 and 2, 24 and 25 August 2011. It
was only during
her cross-examination during those proceedings that
the Applicant had made allegations that Mbiti had previously sexually
harassed
her and coerced her into a sexual relationship. These
allegations had never been made in any forum before, and thereafter,
the
Applicant was invited to lodge a grievance. She had done so on 14
September 2011 and a mediation process was instituted in accordance
with the Respondent’s policies. The process did not take the
matter any further since the outcome of the disciplinary process
was
issued on 31 October 2011, and the Applicant was then dismissed on 1
November 2011.
[30]
Subsequent to her dismissal, the Applicant
had then approached the “Sowetan” and alleged that Mbiti
had previously sexually
harassed her. This had led to a front page
article in that paper titled “
Varsity
head was a sex-pest, colleague
”.
According to the Respondent, Mbiti denies ever having had a sexual
relationship with the Applicant or having sexually harassed
her in
any way. In its arguments, the Respondent had contended that the
Applicant had no prospects of success on the merits of
her claim in
that the allegations of sexual harassment were an after-thought and a
fabrication. This emanated from the Applicant’s
contention that
there was a quid pro quo liaison, which became consensual and
thereafter became rape. In the Respondent’s
view, the Applicant
was dismissed for ordinary misconduct and had thus not made out a
case of sexual harassment or discrimination.
[31]
The
dispute between the parties appear to centre around the dismissal of
the Applicant in relation to the tender awarded to Clean
Shop. By all
accounts, this had what had led to her dismissal. The matter however
does not appear to end with this observation,
and it is clear to me
that there are other considerations at play. As correctly submitted
on behalf of the Applicant, and further
in reference to
MS
v CS Centre for Child Law AS Amicus Curiae
[7]
,
the test for determining if condonation should be granted is whether
it is in the interest of justice. A similar approach was
followed in
Brummer
V Gorfil Brothers Investments (Pty) Ltd
[8]
where Jacoob J stated that the interest of justice should be an
overall consideration when dealing with applications for condonation.
Amongst other factors that need to be considered is also whether the
issues to be decided are important or significant.
[32]
In my view, there are other factors that
are more important in this case than the mere fact of the dismissal
for misconduct. The
Applicant’s case in the alternative rests
on an allegation of automatically unfair dismissal, more specifically
surrounding
the allegations of sexual harassment. The Respondent is a
public institution, and the allegations and counter-allegations
between
the Applicant and Mbiti are clearly now in the public domain.
Whether the publication of these allegations was initiated by the
Applicant or not is now irrelevant. If condonation is not granted, it
would imply that these issues, which are of importance to
the
community of the Respondent and the public at large are not properly
ventilated. In the eyes of the Respondents community,
the Applicant
will remain a criminal whilst Mbiti will always be viewed as “
sex
pest
”. It can thus not be in the
interest of justice that these issues remain unresolved.
[33]
The above reasoning is in line with the
fact that a consideration needs to be made as to whether the issues
to be decided are important
or significant. The issue of the
dismissal for misconduct is not as much as important or significant
as the issues surrounding
the allegations made in regard to the
Applicant and Mbiti. In my view, a consideration of these factors,
including the interest
of the Respondent in putting them to finality
is paramount. To that end, even though the main issue related to the
dismissal for
misconduct, and the fact that the allegations of sexual
harassment had indeed surfaced belatedly, I am satisfied that
considerations
of the interest of justice and indeed the interest of
the Respondent as a public institution dictate that the application
for the
application for condonation be favourably considered.
Furthermore, in the light of factual disputes pertaining to these
serious
allegations, it would not be competent for this Court to even
make a
prima facie
determination of the prospects of success based on the pleadings.
Other
considerations:
[34]
The contentions made on behalf of the
Applicant that the importance of this case lie in the fact that the
purpose in pursuing it
is to protect the rights of the Applicant or
those of other woman faced with discrimination and or sexual
harassment should be
viewed with scepticism. In fact, these
submissions amount to redherring given the facts of the case and more
specifically, the
belated manner with which the Applicant had made
allegations of impropriety against Mbiti. In my view, the importance
of this case
lies in the fact that the allegations and
counter-allegations between the Applicant and Mbiti emanate within
their relationship
in a public institution. If there is any truth in
any of these allegations and counter-allegations which are now in the
public
domain, it would not only be in the interest of justice, but
also in the interest of the Respondent and its community that they
be
properly ventilated in Court by way of a trial.
[35]
In considering other factors pertinent to
this application, I am of the view that the issue of prejudice should
be viewed in relation
to what is in the interest of the Respondent
and its community as a whole as already illustrated above. A worrying
factor in this
case is that it took about almost a year between 5
October 2010 when the Deloitte report was issued and 1 November 2011
when the
Applicant was finally dismissed. In fact, it took a further
five months after the dismissal for the appeal process to unfold. The
Respondent can thus not complain that a delay of fifty days can even
be more prejudicial to it in light of its own dilatoriness
in
disposing of the disciplinary enquiry long after the Deloitte report
was issued.
[36]
Following up on an objective conspectus of
all factors that need consideration in respect of applications of
this nature,
and further having weighed these against each
other, I am satisfied that even though the Applicant has not
proffered a satisfactory
and acceptable explanation for a delay of
fifty days in filing her statement of claim, she has ultimately shown
good cause, and
her application for condonation should thus be
granted. Furthermore, considerations of law and fairness dictate that
a cost order
should not be made, and that each pay should pay its own
costs. In the premises the following order is made;
Order
:
1.
The late delivery of the Applicant’s
statement of claim is condoned.
2.
There is no order as to costs.
__________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Adv F Darby
Instructed
by Joubert Attorneys
For
the Respondents: Mr. KS Makapane
Of
Bowman Gilfillan INC.
[1]
[1962] (4) SA 531
(A) at 532 B-E
[2]
[1999] (3) BLLR 209
(LAC) at p211 paragraph G-H
[3]
Marked “A” as attached to her founding affidavit
[4]
See NUMSA and Another v Hillside Aluminum [2005] 6 BLLR 601 (LC)
[5]
See Saloojee & another N.N.O v Minister of Community Development
1965 (2) SA 135 (A)
[6]
[2009] (30) ILJ 347 (LC)
[7]
[2011] (2) SACR 88
at para 15
[8]
[2000] ZACC 3
;
[2000] (2) SA 837
(CC) at 839F