About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 36
|
|
POPCRU obo Feni v Nozigqaba NO and Others (JR772/2014) [2015] ZALCJHB 36 (13 February 2015)
REPUBLIC
OF
SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR772/2014
DATE:
13 FEBRUARY 2015
Not
Reportable
In the matter between:
POPCRU Obo
CONSTABLE
X
FENI
..............................................................
Applicant
And
M. A. NOZIGQWABA
N.O
...........................................................
First
Respondent
THE SAFETY AND SECURITY SECTORAL
BARGAINING
COUNCIL
........................................................
Second
Respondent
SOUTH AFRICAN POLICE
SERVICES
..................................
Third
Respondent
Heard:
18
December 2014
Delivered:
13
February 2015
Summary:
Application
for condonation for the late filing of a review application.
Application dismissed.
JUDGMENT
LE ROUX, AJ
[1]
This matter concerns an
unopposed application in terms of section 158(1)(g) of the Labour
Relations Act, 66 of 1995 (“LRA”)
to review and set aside
a ruling made by the first respondent to the effect that he and the
second respondent did not have jurisdiction
to consider an unfair
dismissal dispute referred to it by the applicant.
[2]
The ruling is based on
a finding made by the first respondent that the reason for the
dismissal was the applicant’s participation
in an unprotected
strike.
[3]
When the matter was
called, I requested the applicant’s legal representative to
address me on the issue of condonation.
[4]
From the papers, it
appears that the ruling is dated 5 August 2013. The founding
affidavit indicates that the applicant came to
know of this ruling on
the same date.
[5]
The notice of motion
requesting this Court to set aside the ruling is dated 16 April 2014
and it was filed on 23 April 2014. This
means that a period of some
37 weeks lapsed between the date of the ruling and the filing of the
application. The LRA does not
prescribe a time period within which
applications in terms of section 158(1)(g) must be lodged. However,
decisions such as
SACCAWU
obo Manzana and Others v Pick ‘n Pay
,
Kimberley and
Others
[1]
and
Weltevrede
Kwekery (Pty) Ltd v CCMA and Others
[2]
have indicated that such an application should be launched with a
reasonable time and that the six week time period set for
applications
in terms of section 145 constitutes a guideline in this
regard.
[6]
In my view a period of
37 weeks constitutes an unreasonable delay. The applicant was,
therefore, correct in seeking condonation
for the late filing of this
application.
[7]
The approach adopted by
the then Appellate Division with regard to condonation applications
in
Melane v Santam
Insurance Co Ltd
[3]
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.’
[4]
[8]
The founding affidavit
deals with three of the factors mentioned in the above excerpt. It
accepts that the application is late but
states that this delay
amounts to some 24 weeks. By my calculation this is incorrect. As
indicated above, the period of time that
elapsed is some 37 weeks. If
one accepts, as the Applicant seems to accept, that a reasonable
period for the launching of a review
application is 6 weeks, the
application is some 31 weeks late. This is, in my view, extremely
late.
[9]
The explanation for the
delay seems to be twofold. The first is that the applicant first
sought to rescind the award. In a ruling
dated 6 January 2014 the
First Respondent, correctly in my view, refused to rescind the award
on the basis that no ground for rescission
set out in section 144 of
the LRA had been established.
[10]
The applicant then
instituted review proceedings. The notice of motion is dated 16 April
2014 and it was filed with this Court on
23 April 2014. The founding
affidavit states that the applicant briefed their attorneys of record
to assess the merits of a potential
review application on 19 March
2014. The attorney briefed to deal with the matter was travelling
overseas and was only able to
attend to the matter on his return on 3
April 2014. This is given as the second reason. However, a boarding
pass dated 27 March
2014 is annexed to the affidavit indicating that
the attorney concerned returned to South Africa on 27 March 2014.
[11]
I have significant
concerns with these reasons. Firstly, no reason is given why it was
regarded as appropriate or necessary to first
launch a rescission
application. There was clearly no legal basis for such an
application. I note that the affidavit in this matter,
as well as
that in the rescission application, was attested to by a “Legal
Advisor at National Level” of the applicant
union and not one
of the other union officials. Such a legal advisor would or should
understand the difference between reviews
and rescissions and the
time periods involved. In addition, even if one thought that this was
an appropriate course of action,
no information is provided as to
when this application was launched and how it progressed.
[12]
Even more importantly,
no reason is given as to why it took so long to brief an attorney to
review the matter. The ruling in which
the rescission application was
rejected is dated 6 January 2014. It was more than two months later
that attorneys were briefed.
One would have thought that by this
date, the applicant’s legal advisor would have been concerned
about the delay that had
already been incurred and would have taken
steps to at least attempt to expedite the matter. In addition, the
explanation for the
delay of a further month from the date that
attorneys were briefed until the application was filed is
unacceptable. No explanation
is provided as to why, when it became
apparent that the relevant attorney would not be available, no steps
were taken to utilise
another attorney, from the same firm or another
firm. By this stage, the applicant’s officials must have
realised that any
application to review would be extremely late and
no effort is made to explain why steps were not taken to try to
expedite the
matter. No effort is made to explain why the attorney
could only deal with the matter on 3 April 2014 when the founding
affidavit
indicates that the attorney arrived back in South Africa in
27 March 2014. Even if one accepts that the first occasion on which
the attorney could deal with the matter was 3 April 2014, it still
took 21 days to file the papers. No explanation is provided
as to why
this further delay occurred. No sense of urgency to deal with an
application which was already very late can be discerned
from the
papers.
[13]
There is clear
authority for the view that where the delay is excessive and there is
no acceptable reason provided for the delay
the prospects of success
as a factor to be taken into account when considering condonation is
immaterial. See in this regard
NUM
v Council for Mineral Technology
[5]
where the 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 and 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.’
[6]
[14]
I am also mindful of
the fact that the Courts have repeatedly stressed that the LRA gives
high priority to the expeditious finalisation
of disputes.
[15]
Nevertheless, I am
called upon to consider all relevant factors and to exercise a
considered judicial discretion in this regard.
I have, therefore,
considered the applicant’s prospects of success
[16]
The first respondent’s
ruling is based on a finding that the reason for the dismissal was
that the applicant participated
in a strike and that, in the absence
of an agreement as envisaged in section 141(1) of the LRA, the matter
had to be adjudicated
by the Labour Court.
[17]
The law in this
context, as I understand it, is that the starting point for
determining jurisdiction is the allegation made by the
applicant when
he or she refers a dispute to the CCMA. Clearly, when the employee
gives as a reason for dismissal one which will
result in any dispute
being referred to the Labour Court after conciliation has failed,
this will mean that the CCMA or a bargaining
council will not have
jurisdiction to deal with the matter. However, if the employee
provides a reason for dismissal which will
result in the CCMA or
bargaining council having jurisdiction to arbitrate the dispute (or
alleges that he or she does not know
the reason for the dismissal)
and the employer challenges this reason and states that the reason
for the dismissal was one which
would result in the matter having to
be adjudicated by the Labour Court, the position is more difficult.
Here, the CCMA will have
“provisional” jurisdiction to
consider the matter and to decide what the real reason for the
dismissal was. The arbitrator’s
finding in this regard will
determine whether the CCMA or a bargaining council, or the Labour
Court accepts jurisdiction.
[7]
[18]
As indicated above, in
this matter the first respondent made a finding that the reason for
the dismissal was that the employer was
of the view that the employee
participated in an unprotected strike and that this finding deprived
him of jurisdiction. There was
also no agreement in terms of section
141(1) of the LRA giving him jurisdiction to arbitrate the dispute.
[19]
The founding affidavit
does not set out in any detail what the precise ground for reviewing
this ruling is. In paragraph 12, reference
is made to the arbitrator
committing misconduct and a gross irregularity. Paragraph 18 seems to
argue that there was no evidence
on which the first respondent could
have relied to justify such a ruling. Unfortunately, the founding
affidavit does not deal with
this in any detail. Apart from one
allegation to the effect that that no evidence was led to show that a
strike took place and
that the applicant took part in a strike, the
applicant does not indicate what evidence was placed before the first
respondent
in this regard and by whom, what evidence the first
respondent failed to take into account or what evidence should he not
have
considered. The issue is not dealt with in a supplementary
affidavit when the record was available to the applicant. On this
basis,
the applicant has failed to make out a case on its papers.
[20]
Whilst the matter is
undoubtedly of importance to the applicant as an individual, the
matter does not deal with any issue of public
policy importance. The
employee deals with the prejudice that he will suffer if condonation
is not granted but this must be weighed
against the prejudice that
the employer will suffer if it is called upon to deal with a matter
after the lapsing of a considerable
period of time. The employer has
an interest in this matter being brought to finality. The prejudice
suffered by the employee is
largely that of his own making or at
least that of his representatives.
[21]
Taking all these
factors into account, I have come to the conclusion that condonation
for the late filing of the review application
should not be granted
and that the application should be dismissed.
Order
I make the
following order:
1. Condonation
for the late filing of the review application is refused.
2. The
application is dismissed.
Le Roux, AJ
Acting Judge of the Labour
Court of South Africa
Appearances:
For the Applicant:
For the Third
Respondent:
[1]
[2003] 10 BLLR 1065
(LC).
[2]
(2006) 27
ILJ
182 (LC).
[3]
1962 (4) SA 531
(A).
[4]
Ibid
at 532 C-F.
[5]
[1999] 3 BLLR 209
(LAC) at para 10.
[6]
See also, for example,
Colett
v Commission for Conciliation, Mediation and Arbitration and Others
[2014] 6 BLLR 523
(LAC) and
Thompson v
National Health Laboratory Services
[2009] JOL 24319
(LAC).
[7]
See in this regard
Wardlaw
v Supreme Moulding (Pty) Ltd
(2007) 28
ILJ
1042
(LAC) and
Gold Fields Mining SA (Pty)
Ltd (Kloof Gold Mine) v CCMA and Others
[2009]
12 BLLR 1214
(LC).