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[2014] ZALCJHB 229
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Tau v Commission For Conciliation, Mediation and Arbitration and Others (JR 2348/06) [2014] ZALCJHB 229 (1 July 2014)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
THE LABOUR COURT
OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
Case
no: JR 2348/06
In
the matter between:
MONAMI
BEN
TAU
.................................................................................................................
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
............................................................................
First
Respondent
COMMISSIONER
K D MATJI
(N.O)
.....................................................................
Second
Respondent
TELKOM
SA
LTD
........................................................................................................
Third
Respondent
Heard:
7 September 2012
Delivered:
1 July 2014
Summary:
(Review – Condonation – 122 day delay – only
partially explained - long unexplained delay sufficient to dismiss
the application – in any event, on conspectus of factors
application dismissed)
JUDGMENT
LAGRANGE,
J
Introduction
[1]
This matter concerns a review application
in which the applicant only filed his application on 11 July 2007
having received the
award on 23 August 2006. Consequently before the
review application can be entertained, it must first be decided
whether the very
long delay in filing the application which should
have been filed no later than 6 October 2006 should be condoned.
The period of
delay
[2]
As mentioned above, the review application
should have been filed at the latest on 6 October 2006, but was filed
some nine months
later. This amounts to a time period nearly six
times longer than it should have been. The delay is very long and
requires a very
good explanation even before prospects of success of
the review application can be considered. The record of the
proceedings itself
took another two years before it was filed, even
though the first respondent had lodged the record with the registrar
of the Labour
Court in August 2007. The applicant filed the record of
the proceedings a further seven months later
[3]
On 2 January 2007 a formal alteration was
made to the arbitration award when a variation ruling was handed
down. The sole purpose
of the variation was to change one figure in
the case number. The applicant claims this was only received by the
union that was
representing them at the time on 12 January 2007 at
which point the matter was referred to the union's erstwhile
attorneys for
consideration and preparation of the review
application. From correspondence attached it is evident that by late
February the applicant
had received an unfavourable opinion from
council about the prospects of his case and by early March
correspondence with the erstwhile
attorneys came to an end. There was
then a long unexplained delay of about three months before new
attorneys of record came into
the picture in early June 2007.
Although the new attorneys had all the necessary documents by mid
June it still took over three
weeks to file the review application.
At no stage during this lengthy delay of some months was there any
effort made to make the
third respondent (‘Telkom’) aware
that the applicant was intending to launch review proceedings and
seeking its support
for the substantial delays and to warn it that
the applicant was not going to let the arbitration award lie.
[4]
The applicant and his union assumed that he
was prevented from taking any steps to pursue the review application
until the number
of the award was changed. Nothing would have
prevented him from launching the review application and correcting
the citation of
the award by way of an amendment. The delay between
obtaining the award and waiting for the outcome of the variation
application
is not really satisfactorily explained by the misplaced
importance attached to one digit in the arbitration case number. Be
that
as it may, the delay between February and mid June is not
explained at all. That period alone is a period of over three months,
which in relation to a six-week period for filing review applications
is excessive.
The prospects of
success
[5]
The applicant, who was employed as a
Systems controller by Telkom, was charged and found guilty on two
counts of misconduct. The
first charge related to him allegedly
falsely claiming the cost of transporting his household goods when he
was moved from Bloemfontein
to Durban in January 2003, from Durban to
Cape Town in March 2004, and Cape Town to Pretoria in mid-2004. The
second and related
charge was for the submission of fraudulent
quotations from fictitious vendors of transport services in relation
to the same transportation.
[6]
The arbitrator wrote a closely considered
award with a detailed summation of the evidence. He found the
applicant not guilty of
fraudulent claims for transportation costs
from Bloemfontein to Durban and from Durban to Cape Town. When it
came to the submission
of fictitious quotations however the
arbitrator found that the applicant had made a misrepresentation that
the fictitious companies
existed and that Telkom would not have
accepted the tender of Power Moves (the successful contractor) if it
had known the competing
quotations were fictitious. The arbitrator
was critical of the applicant's failure to obtain any testimony from
an employee of
Power Moves to confirm that it had transported his
goods, whereas she had managed to secure the attendance of witnesses
to come
to Pretoria from as far away as Cape Town. It had been the
evidence of an investigator from the security inspection department
that he had visited the applicant’s accommodation in Pretoria
and he had been unable to show him the goods that were transported
to
Pretoria and this evidence of the investigator was not challenged.
[7]
The arbitrator also noted also that the
transportation company which happen to belong to the wife of a Telkom
employee had been
very slow to submit its claim to Telkom for
payment, which the arbitrator found it strange if it had indeed
transported the goods.
In his evidence the applicant had claimed that
his goods were in storage in Pretoria and that he told the
investigator this, but
this was not pertinently put to the
investigator in cross-examination. Moreover, when he gave his
evidence in chief, the applicant's
version of what happened to the
goods that were supposedly transported was opaque and vague and it is
apparent that he avoided
the arbitrator's questions aimed at
obtaining greater clarity about his version.
[8]
The applicant raised a number of grounds of
review. In assessing the prospects of success what essentially
matters are the grounds
of review in relation to the central pillars
of the arbitrator's findings.
[9]
On the critical issue of the three
quotations presented by him he claimed that the arbitrator
incorrectly attributed a duty to him
to verify that the quotations
were genuine whereas all he had to do was to obtain the quotations
and it was for Telkom to verify
them. On the face of it, this claim
is bizarre. It was the applicant who obtained quotes and was best
placed to explain how he
did so. The odds of him receiving fictitious
quotes from fictitious companies in response to his bona fide
enquiries, beggars belief.
The probabilities of that happening are so
extraordinary, they cry out for an explanation from the person who
obtained them. It
is disingenuous of the applicant to attempt to
absolve himself of any responsibility in this regard. The only
explanation he gave
of how he obtained the fictitious quotes is that
he got the telephone numbers of the bogus companies from unidentified
colleagues,
which was not even sufficient to lay a
prima
facie
explanation for the extraordinary
coincidence.
[10]
The applicant also claims that the
arbitrator failed to consider the investigator’s alleged
concession under cross-examination
that he concluded that the goods
had been transported from Cape Town to Pretoria and did not verify
that because he trusted the
applicant, whereas he placed emphasis on
the fact that the investigator testified that the applicant had
refused to point out the
goods delivered when he wished to inspect
them. This mischaracterises the evidence of the investigator. The
reason he did not attempt
to visit the premises where the applicant
was staying in Pretoria, was that the applicant himself told him he
could not show him
the goods which had been moved, so there was no
point in inspecting the premises.
[11]
Another ground of review relating to the
arbitrator’s evaluation of whether or not the applicant's goods
were transported
to Pretoria, concerns the allegation that he ignored
the evidence of Mr S Moeketsi, a fellow employee from whom the
applicant was
subletting a small apartment in Pretoria, that the
applicant’s goods were at his flat. In emphasising the
applicant's failure
to call for testimony from the removal company to
confirm the transport of the goods, while supposedly ignoring the
evidence of
Mr Moeketsi the arbitrator demonstrated clear bias
towards the applicant. In fact, the arbitrator did not ignore the
evidence of
Mr Moeketsi, but found it implausible. In passing, it
should also be mentioned that Moeketsi’s evidence was not
something
canvassed with the investigator when he was cross-examined.
[12]
The applicant also claims that the finding
of the arbitrator that there was no procedural unfairness in his
disciplinary enquiry
was totally unreasonable and irregular because
the applicant was denied an opportunity to cross-examine Telkom’s
witnesses
in the enquiry. It is clear from the award that the
arbitrator did consider the claim but found that the applicant had
not led
sufficient evidence to rebut the employer’s evidence
that the procedure was fair. Further, a consideration of the record
of the enquiry shows that there were sufficient opportunities for the
applicant and his representative to participate in cross-examination
of the witnesses.
[13]
The other criticisms of the award are not
ones that offer much prospect of success, in my view, because they
attack the arbitrator's
evaluation of evidence but without
demonstrating that any shortcomings in that regard necessarily
rendered the arbitrator's findings
ones that no reasonable arbitrator
could have reached.
[14]
In
light of the above I am not persuaded on the centrally important
findings of the arbitrator that the applicant has demonstrated
reasonable prospects of those findings been set aside, bearing in
mind the high threshold for setting aside an award unless the
conclusions of the arbitrator are such that no reasonable arbitrator
could have arrived at them.
[1]
Prejudice
[15]
The applicant has already had the benefit
of an extensive internal enquiry and an equally extensive arbitration
hearing. If the
condonation application is refused, it is not as if
the applicant has never had the opportunity to place his case before
an independent
forum. Nothing on the record or the award suggests to
me that the arbitration hearing was in any material way lacking in
that respect.
Given not only the delays in bringing the application,
but also the long delays in finalising it so that the matter could be
set
down for a hearing, it would not be fair to the third respondent
to have to revisit the matter after so long.
Conclusion
[16]
In view of the unexplained and considerable
periods of delay in launching the application even if the applicant
is given some leeway
for the misguided delay occasioned by awaiting
the variation of the CCMA case number, I believe the condonation
application should
be dismissed on this basis alone. However, even if
I am incorrect in such a finding, on a consideration of all the above
mentioned
factors together, this is not a case in which condonation
should be granted. Naturally it follows from my finding that, the
review
application falls away as it cannot be considered in the
absence of condonation been granted.
[17]
In view of the manner in which the
applicant has conducted the review application at his own
convenience, to the inconvenience of
the third respondent, there is
no reason why costs should not follow the result in my view.
Order
[18]
The application for the condonation of the
late filing of the applicant's review application is dismissed with
costs.
_______________________
R LAGRANGE, J
Judge of the
Labour Court of South Africa
APPEARANCES
APPLICANT:
S B Nhlapo instructed by Medupi Lehong Inc
FIRST RESPONDENT: P
Masebo of Third Respondent
[1]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC) at 2439F