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[2014] ZALCJHB 192
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Ledwaba v Commission for Conciliation, Mediation and Arbitration and Others (JR1458/11) [2014] ZALCJHB 192; JR1458/11 (29 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO: JR1458/11
In
the matter between:
MACHOGA REGINALD
LEDWABA
Applicant
And
COMMISSION FOR
CONCILIATION, MEDIATION
AND ARBITRATION
First Respondent
COMMISSIONER SIMON
RANTHO
Second Respondent
ESKOM CUSTOMER
SERVICES
Third Respondent
Heard:
10 July 2013
Delivered:
29 May 2014
Summary:
Applicant for review confined to grounds in founding and
supplementary affidavits
JUDGMENT
PONELIS,
AJ
Factual
background
[1]
In the
matter before me the applicant seeks the review and setting aside of
a written ruling of the second respondent (‘the
ruling’),
pursuant to the provisions of section 158(1)(g) of the Labour
Relations Act
[1]
(‘LRA’).
[2]
On 31 March 2010 the third respondent dismissed the applicant for
misconduct. On 8 December 2010 the applicant referred a dispute
concerning the fairness of his dismissal to the first respondent.
This was accompanied by an application for condonation of the
lateness of the referral, pursuant to section 191(2) of the LRA.
[3]
The applicant’s allegations in the condonation application are
scant. He submits that he was dismissed on 31 March 2010,
that the
dispute arose on 14 April 2010 and that his dispute referral was 224
days late. His explanation for this lateness is that
he went to his
trade union on 28 September 2010 and that he was waiting for a
response from the third respondent. The applicant
further concedes
that he was guilty of the charge for which he had been dismissed,
though he submits that he should have been given
a warning instead.
[4]
On 20 January 2011 the applicant’s condonation application
proceeded to hearing before the second respondent, in the capacity
of
commissioner of the first respondent. Both the applicant and the
third respondent appeared before the second respondent. The
applicant
was represented by a trade union. Though the proceedings were not
mechanically recorded, it is apparent that the second
respondent
allowed the parties to make oral submissions.
[5]
The ruling was issued by the second respondent pursuant to those
proceedings. In the ruling the second respondent dismissed
the
applicant’s condonation application and, concomitantly, the
applicant’s dispute referral. The second respondent’s
salient reasons in the ruling are as follows:
‘
The degree of
lateness herein is extremely extensive – 224 days which amounts
to approximately 7 Months. The applicant submitted
that he has been
waiting for the appeal outcome nonetheless he could not demonstrate
concrete efforts to obtain same from employer.
He did not show the
steps he took to obtain same from the respondent.
It was submitted for the
employer that applicant was a fulltime shopsteward who is conversant
with the disciplinary policy and this
was never disputed by the
applicant accordingly. I find that the reasons for the delay are
untenable.
Furthermore I find that
the applicant may have the right chance of success herein and he may
suffer prejudice but in overall I find
that he failed to make a case
for condonation.
In arriving at his
conclusion I also took the fact that the applicant bears the onus of
private herein.’
Analysis
[6]
But for prayer 1 in the notice of motion, the founding papers in the
present application contain no reference to the ruling.
In his
founding affidavit the applicant elaborates on reasons why he
maintains that his dismissal was unfair. Even though I accept
that
the applicant was, at least when he deposed to his founding
affidavit, an unrepresented lay person, I am unable to construe
any
review grounds from those allegations. I am also not availed of a
supplementary affidavit because, for purposes of rule 7A(8),
the
applicant filed a notice that he stood by his notice of motion. The
only review grounds proffered by the applicant appear in
his replying
affidavit.
[7]
Pursuant to
the Labour Appeal Court decision in
Netherburn
Engineering v Mudau,
[2]
an applicant for review is confined to the case made out in the
founding affidavit, as supplemented in terms of Rule 7A(8). I am
accordingly enjoined to dismiss the present application.
[8]
Regardless,
taking into account the reasons for the ruling in relation to the
content of the applicant’s condonation application,
it is
apparent that the second respondent was seized with an instance where
the applicant for condonation did not, despite the
occurrence of a
substantial delay, demonstrate compelling reasons in relation to
prospects of success and reasons for the delay.
In these
circumstances the ruling was not one that a reasonable decision maker
could not reach.
[3]
Conclusion
[9]
In the premises, the second respondent’s ruling is allowed to
stand as the following order is made:
(i) The
application is dismissed.
(ii) There is
no order as to costs.
________________
PONELIS,
AJ
Acting
Judge of the Labour Court
APPEARANCES:
For the Applicant:
No appearance
For the Third
Respondent:
S Zilwa
Makaula Zilwa Inc.
[1]
66
of 1995
[2]
Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau NO & another
(2009)
30 ILJ 269 (LAC) at para 18.
[3]
Sidumo
and another v Rustenburg Platinum Mines Limited and others
(2007)
28 ILJ 2405 (CC) at paras 106-110.