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[2015] ZALCJHB 37
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POPCRU obo Timla v Nozigqwaba and Others (JR773/2014) [2015] ZALCJHB 37 (13 February 2015)
REPUBLIC
OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR773/2014
DATE: 13 FEBRUARY 2015
Non Reportable
In the matter between:
POPCRU
Obo Lt. P.N.
TIMLA
...............................................................................
Applicant
And
M.A
NOZIGQWABA
.....................................................................................
First
Respondent
THE
SAFETY AND SECURITY
SECTORAL
......................................
Second
Respondent
BARGAINING COUNCIL
SOUTH AFRICAN POLICE
SERVICES
..................................................
Third
Respondent
Heard:
18 December 2014
Delivered:
13 February 2015
Summary:
Application for
condonation for late filing of review application. Application
dismissed.
JUDGMENT
LE
ROUX, AJ
[1]
This
is 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. The ruling was to
the effect that he and the second respondent did not have
jurisdiction to consider an unfair dismissal dispute referred to the
second respondent by the applicant. This was based on a finding
that
the applicant had been dismissed because he had participated in an
unprotected strike.
[2]
When
the matter was called, I requested the applicant’s legal
representative to address me on the issue of condonation.
[3]
The
founding affidavit in support of this application states that that
the ruling was issued on 16 September 2013 and came to the
applicant’s knowledge on the same date.
[4]
The
founding affidavit is dated 14 April 2014. The notice of motion is
dated 16 April 2014 and these papers were filed with the
Labour Court
on 23 April 2014.
[5]
No
time period is set by the LRA within which applications in terms of
section 158(1)(g) must be lodged but 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]
state 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]
By
my reckoning, the application to review was brought 31 weeks after
the ruling came to the attention of the applicant. In my view,
a
period of 31 weeks constitutes an unreasonable delay. The applicant
was, therefore, required to apply for 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 states that the application was launched 15 weeks
late. By my reckoning, this is incorrect. As indicated
above, the
period of time that elapsed is some 31 weeks. If one accepts that a
reasonable period for the launching of a review
application is 6
weeks, the application is some 25 weeks late. This is, in my view,
extremely late.
[9]
Two
explanations are given for the delay. The first is that the applicant
initially sought to rescind the award. On 10 February
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. As indicated above, 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 the attorneys of record to assess the
merits of a
potential review application on 19 March 2014 but that 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. 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 serious 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. 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 have knowledge
of the difference between a review
and a rescission application and
the time constraints that apply to review applications. 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]
In
addition, no reason is given as to why it took more than a month
after the rescission ruling to brief an attorney to consider
the
matter. After the rejection of the rescission ruling, one would have
thought that the applicant’s legal advisor would
have been
concerned about the delay that had already been incurred and would
have taken steps to expedite the matter.
[13]
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 union’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 on
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.
[14]
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.’
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).
[15]
I
am also mindful of the point that the Courts have repeatedly stressed
that the LRA gives high priority to the expeditious finalisation
of
disputes.
[16]
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
[17]
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.
[18]
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. If 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, unless otherwise agreed. 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, a bargaining council or the
Labour Court accepts
jurisdiction.
[6]
[19]
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.
[20]
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. In paragraph 17, it is argued that there was no
evidence
on which the first respondent could have relied on to
justify such a ruling.
[21]
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
did the first respondent failed
to take into account or what evidence
he should not have considered. There is no supplementary affidavit
which deals with this
issue. On this basis the applicant has failed
to make out a case on its papers.
[22]
Whilst
the matter is undoubtedly of importance to the applicant as an
individual, the matter does not deal with any issue of public
policy
of 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 third respondent 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.
[23]
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 South Africa
[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 in this
regard
Wardlaw
v Supreme Moulding (Pty) Ltd
(2007) 228
ILJ
1042 (LAC) and
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[2009] 12 BLLR 1214
(LC).