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[2015] ZALCJHB 25
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Department of Justice & Constitutional Development v General Public Service Sectoral Bargaining Council and Others (JR2479/2013) [2015] ZALCJHB 25 (26 January 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
No: JR2479/2013
DATE:
26 JANUARY 2015
NOTE
REPORTABLE
In
the matter between:
THE
DEPARTMENT OF JUSTICE & CONSTITUTIONAL
DEVELOPMENT
.................................
Applicant
And
THE
GENERAL PUBLIC SERVICE SECTORAL BARGAINING
COUNCIL
.....................
First
Respondent
SEELE
MOKOENA
N.O
..................................................................................................
Second
Respondent
PSA
obo L MOKONYAMA &
OTHERS
..............................................................................
Third
Respondent
Heard:
18 December 2014
Delivered:
26 January 2015
Summary:
Application to review ruling made by arbitrator refusing to condone
late rescission application. Application dismissed.
JUDGMENT
LE ROUX, AJ
[1]
This is an opposed application to review and set aside a ruling made
by the second respondent in terms of which condonation
for the late
filing of the applicant’s rescission application under case
number GPBC 1258/10 was refused.
[2]
This review application was also lodged two days late and the
applicant also sought condonation for the late filing of this
application. Application for condonation was not opposed. I have
considered the matter and condonation for the late lodging of
this
review application is granted.
[3]
The Public Servants Association (hereafter referred to as the third
respondent), acting on behalf of some of its members, referred
a
dispute concerning the application and interpretation of a collective
agreement to the first respondent.
[4]
The arbitration was set down for a hearing on 10 September 2010. The
applicant did not attend the hearing. On 10 October 2010,
the second
respondent issued a default award in favour of the third respondent
and the relevant members.
The
rescission application
[5]
During May 2013, more than two years later, the applicant lodged a
rescission application. It was therefore necessary to apply
for
condonation for the late filing of the rescission application.
[6]
The founding affidavit of Mr Tsakane Dickson Muzwayne in the
condonation/rescission application sets out the facts on which
the
application for condonation was based. These can be summarised as
follows -
6.1
The applicant’s regional office
received the award on 19 October 2010. It forwarded the award to the
national office which
referred it to the labour section of this
office. The affidavit states that Ms Maimela of this section
then forwarded it
to the legal section with instructions to refer it
to the State Attorney. However, the relevant correspondence annexed
to the affidavit
indicates that Ms Maimela herself briefed the State
Attorney on 9 December 2010. She was also party to the other
correspondence
referred to below. I should add that, by this time,
the rescission application was already a month late.
6.2
For reasons that are not clear from the
affidavit, the State Attorney did not open a file immediately. The
applicant had to send
further correspondence in this regard on 15
December 2010 and again on 27 January 2011. A file was then opened by
the State Attorney’s
office. A follow up letter was also sent
to the State Attorney on 7 February 2011.
6.3
Consultation then took place with the State
Attorney. Thereafter, a draft affidavit seems to have been prepared
by a Mr Phamba of
the State Attorney’s office. From the record
it is not clear whether a final affidavit was ever drafted by Mr
Phamba. However,
it is clear that if there was such an affidavit, it
was never served and filed.
6.4
Although the affidavit does not refer to
it, the record contains a letter dated 6 May 2011 marked “TDM
6” addressed
to the State Attorney where the applicant again
queries progress. This letter was signed by a Mr Sadiki.
6.5
Mr Phamba left the State Attorney’s
office in February 2012 and a Mr Mhambi took over his files in
August 2012. It is
not stated who was in charge of Mr Phamba’s
files during the intervening period. The affidavit creates the
impression that
nobody was placed in charge of these files during
this period and states that during this period Mr Phamba’s
files did not
receive the attention they deserved.
6.6
Mr Mhambi and Ms Maimela were unaware that
the rescission application had not been served and filed until they
received a memorandum
from counsel who had been briefed to prepare
heads of argument opposing the third respondent’s application
to have the award
made an order of court. It is not stated when they
became aware that the rescission application had not been served and
filed and
it is not stated precisely what they did when they became
aware of the potential problem. However, it appears that this came to
their knowledge in April/May 2013. No indication is given as to why
Mr Mhambi did not discover that the rescission application
had not
been served and filed in the intervening period.
[7]
The affidavit goes on to argue that the relevant employees would not
be prejudiced by the delay because they had been correctly
dealt with
by the applicant in terms of the collective agreement and that the
prospects of success on the merits of the case were
good.
[8]
The opposing affidavit in the application to have the award made an
order of court, in which the merits of the dispute are dealt
with,
was attached to the founding affidavit.
[9]
The third respondent’s answering affidavit did not challenge in
any detail the sequence of events set out in the founding
affidavit.
The main thrust of the response was that the delay was excessive and
that there was no satisfactory explanation for
this delay.
The
ruling
[10]
In a ruling dated 13 October 2013, the second respondent refused
condonation. His reasoning is set out in the ruling under
the heading
“Analysis of Arguments”. He found that:
10.1
the application was almost three years late, and that this delay is
excessive;
10.2
the explanation for the delay was neither satisfactory nor
reasonable;
10.3
the officials who dealt with this matter
were senior officials who could have dealt with the matter and that
at the time that they
elected to refer the matter to the State
Attorney, it was already late; and,
10.4
the applicant was not entitled to rely on
the tardiness of the State Attorney to justify the delay.
[11]
The second respondent also accepted that:
11.1
one of the purposes of the Labour Relations
Act, 66 of 1995 (“LRA”) is to expedite the resolution of
labour disputes
and that the applicant’s conduct defeated this
aim; and
11.2
that any prospects of success that the
applicant may have had did not make up for the lengthy delay.
[12]
Finally, the second respondent considered the prejudice that the
parties may have suffered and came to the conclusion that
the
employees concerned who benefitted from the award would be more
prejudiced if condonation were to be granted than the applicant
if it
were not to be granted.
Grounds for
review
[13]
It is this ruling that the applicant seeks to review.
[14]
The founding affidavit in the review application argues: that the
ruling is not one which a reasonable decision maker could
have come
to and that the second respondent came to a “wrong conclusion”
when he found that the explanation for the
delay was neither
reasonable nor satisfactory; that the explanation was reasonable;
that the applicant gave the matter the urgent
attention that it
deserved; that the second respondent’s criticism of the
applicant’s decision to utilise the State
Attorney was
misplaced; that the second respondent did not give adequate weight to
the argument that the applicant’s prospects
of success on the
merits of the case were good; and that the second respondent should
have realised that all the facts were interrelated.
The second
respondent’s approach constituted misconduct as envisaged in
section 145 of the LRA.
[15]
In argument before me, the applicant’s representative
reiterated the arguments set out in the founding affidavit. He
emphasised the need to take a holistic approach to condonation
applications and to consider all relevant factors. He argued that
a
relevant factor in this regard was that the applicant always intended
to challenge the award and to have it rescinded. There
had been no
wilfulness in the disregard of the relevant time period. He also
argued that the applicant’s prospects of success
and the
prejudice it would suffer if condonation was not granted had not been
given sufficient weight by the second respondent.
[16]
In its answering affidavit and in argument the third respondent
persisted with its view that the delay was unreasonable and
that no
adequate reason was provided for the delay
Analysis and
findings
[17]
The approach adopted by the then Appellate Division with regard to
condonation applications in
Melane
v Santam Insurance Co Ltd
[1]
has been accepted and adopted in numerous decisions of the Labour
Court and the Labour Appeal Court. This is set out in the
following
excerpt from the decision -
‘
In
deciding whether sufficient cause has been shown, the basic principle
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 therefor, the prospects of
success, and the importance of the case. Ordinarily these
facts are
interrelated: they are not individually decisive, for that would be a
piecemeal approach incompatible with a true discretion,
save of
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 for prospects of success which are not strong.
Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the respondent's interest
in
finality must not be overlooked. I would add that discursiveness
should be discouraged in canvassing the prospects of success
in the
affidavits. I think that all the foregoing clearly emerge from
decisions of this Court, and therefore I need not add to
the ever
growing burden of annotations by citing the cases.’
[18]
Although the second respondent does not refer to this decision, it is
clear from the ruling that he adopted the approach set
out therein.
He considered the length of the delay, the reason for the delay and
the prejudice suffered by the relevant parties.
He also considered
the applicant’s prospects of success but found that this factor
was outweighed by the other factors.
[19]
The argument that he gave insufficient weight to the prospects of
success can also be rejected. In
NUM
v Council for Mineral Technology
[2]
it was stated that following is stated –
‘
[10]
…There is a further principle which is applied and that is
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 (cf Chetty v Law
Society, Transvaal 1985 (2) 756 (A) at 765A–C; National
Union
of Mineworkers & others v Western Holdings Gold Mine (1994) 15
ILJ 610 (LAC) at 613E). The courts have traditionally
demonstrated
their reluctance to penalise a litigant on account of the conduct of
his representative but have emphasised that there
is a limit beyond
which a litigant cannot escape the results of his representative’s
lack of diligence or the insufficiency
of the explanation….’
[20]
See also, for example,
Colett
v Commission for Conciliation, Mediation and Arbitration and
Others
[3]
and
Thompson
v National Health Laboratory Services
[4]
.
[21]
There is no doubt that the delay in launching the rescission
application was excessive in the extreme. There is also no acceptable
explanation for the delay. It took more than a month for the
applicant to refer the matter to the State Attorney. No reason is
given for this delay. No detail is given as to when the matter was
referred to the National Office. No explanation is given why
the
State Attorney only opened the file in January 2011. There is no
acceptable explanation as to why the matter was not properly
and
expeditiously dealt with by the State Attorney once it opened a file.
No explanation is given as to why there was a period
of six months
during which, it appears, nobody at the State Attorney’s office
dealt with Mr Phamba’s files. Also of
relevance in this regard
is the allegation that Mr Phamba prepared an application in terms of
rule 31 of the CCMA Rules but did
not serve and file it. If this were
the case, one would have expected the signed affidavit to have been
annexed to the papers.
[22]
It is merely recorded that Ms Maimela and Mr Mhambi only became aware
of the lack of progress with the matter when they received
a
memorandum from counsel in connection with the preparation of heads
of argument in a case where the applicant was opposing an
application
to have the arbitration award made an order of court. When this
memorandum was received and what immediate steps were
taken to remedy
the situation and how long this took is not stated. Why alarm bells
did not ring when the application to have the
award made an order of
court was served on the applicant (or when subsequent pleadings were
served on the applicant) is not explained.
[23]
In argument, the applicant sought to rely on the negligence of the
State Attorney’s office as an excuse for the delays.
While it
is accepted that the Courts are slow to penalise a litigant for its
legal representative’s inept conduct of litigation,
there comes
a point where there is no alternative but to make the client bear the
consequences of the negligence of his attorneys.
See
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
[5]
.
I am of the view that this is one of the cases where the client must
bear the consequences. In fact, in my view there is little
doubt that
the applicant itself did not act with the necessary diligence. The
applicant provides no evidence to show that at any
point during the
period commencing 7 February 2011 (or 5 May 2011 if Annexure TDM 6 is
properly before the court) and ending on
the date when the relevant
officials read the counsel’s memorandum, presumably some time
shortly before the launching of
the rescission application in 2013,
it took any steps whatsoever to enquire as to progress in the
rescission application.
[24]
In so far as prejudice is concerned, the applicant gave very little
detail as to what the extent of the prejudice is that it
will suffer.
From the papers it appears that the applicant argued that the award
has the effect that certain employees will be
paid salaries higher
than those they are entitled to. It is not indicated how many such
employees there are. From documents in
the record it appears that
there are four employees affected by this matter. If this is the
case, the potential additional costs
will, in the greater scheme of
things, be minimal. The possible precedential effect of the award can
also be minimised in the sense
that the applicant can refuse to apply
it to other employees and then argue its case in any new arbitration
proceedings. An arbitration
award does not constitute a binding
precedent. I should add that the applicant’s conduct in not
proceeding with this matter
with due expedition does not support any
argument that it is suffering significant prejudice.
[25]
The applicant argued that the importance of the matter should also
have been considered. However, no evidence is provided in
the
founding affidavit to support this argument. Presumably the
importance lies in the possibility that the award undermines pay
systems. If this is the case this should have been explicitly stated
to be so. In any event, as stated above, the applicant was
only bound
to apply the award to the employees concerned. The award did not
constitute a binding precedent and any further attempt
to apply it to
other employees could have been defended in any new proceedings. Once
again, the failure of the applicant to pursue
the matter with any
vigour indicates that the applicant itself did not regard the matter
as important.
[26]
The argument that the applicant at all times indicated an intention
to fight the matter is not raised in the condonation application.
In
any event it is simply not supported by the facts. Apart from the
letters it sent up to February 2011 (or possibly May 2011)
there is
no further indication of any such intention. Indeed, the applicant’s
subsequent inactivity creates the impression
that it had lost
interest in pursuing the matter. If this were not the case, why is
there no evidence of any further attempt during
the rest of 2011, the
whole of 2012, and a substantial period of 2013, to contact the State
Attorney to see how the matter was
progressing?
[27]
In several decisions the courts have emphasised the importance of
employment disputes being resolved with due expedition and
without
delay. See, for example
CUSA
v Tao Ying Metal Industries and Others
[6]
and
Colett
v Commission for Conciliation, Mediation and Arbitration and
others
[7]
.
[28]
In my view the applicant has not established the existence of any
ground for reviewing and setting aside the ruling as envisaged
in
section 158(1) (g). The second respondent considered all relevant
factors as set out in the affidavits to the condonation application,
did not misconceived the nature of his duties and exercised a
discretion which resulted in a decision which was reasonable and
rational. There was no misconduct on his part as alleged. The mere
fact that he criticised the fact that the applicant’s
officials
referred the matter to the State Attorney does not justify reviewing
and setting aside the ruling.
Order
I
make the following order:
1.
The application is dismissed.
2.
The applicant is to pay the third
respondent’s costs.
Le
Roux, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Adv Tshikereke
For
the Respondent: Mr T Ntshebe
[1]
1962
(4) SA 531
(A) at 523 C-F.
[2]
[1999]
3 BLLR 209
(LAC) at para 10.
[3]
[2014]
6 BLLR 523
(LAC)
[4]
[2009]
JOL 24319
(LAC)
[5]
2003
(6) SA 1
(SCA)
[6]
[2009]
1 BLLR 1
(CC)
[7]
Supra