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[2015] ZALCJHB 60
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POPCRU obo Mulaudzi and Others v Bracks and Others (JR560/08) [2015] ZALCJHB 60 (27 February 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE NO JR 560/08
DATE: 27 FEBRUARY 2015
Not Reportable
In the matter between:
POPCRU obo MULAUDZI & 4
OTHERS
.......................................................................
APPLICANT
And
ADV RONNIE
BRACKS
.......................................................................................
1ST
RESPONDENT
SAFETY AND SECURITY SECTORAL
BARGAINING
COUNCIL
...................................................................................
2ND
RESPONDENT
SOUTH AFRICAN POLICE
SERVICES
...........................................................
3RD
RESPONDENT
Date heard: 27 October 2011
Judgment delivered: 27 October 2011
Date transcript requested and
judgment edited: 27 February 2015
EX TEMPORE JUDGMENT
VAN NIEKERK J
[1] This is an application to review
and set aside an arbitration award made by the first respondent,
Advocate R Bracks (‘the
commissioner’). In his award, the
commissioner found that the dismissal of five employees on whose
behalf the union acts
in these proceedings was substantively and
procedurally fair. The award is dated 19 October 2007.
[2] The applicants state that the award
was received only on 29 November 2007. These papers were filed only
on the 28 March 2008.
The applicant failed to comply with the
six-week time limit imposed by section 145 of the Act and does thus
applies for condonation
for the late filing.
[3] The test to be applied in an
application for condonation is trite. The Labour Appeal Court in
National Union of Mineworkers
v Council for Mineral Technology
[1999]
3 BLLR 209
(LAC) referred to and adopted the test or the approach
established in Melane v Santam Insurance Company Limited
1962 (4) SA
531
(A). That test requires requires the court to exercise a
discretion, a discretion that must be exercised judicially under
consideration
of all of the facts. The factors that are usually
relevant and must be taken into account by the court are the degree
of lateness,
the explanation for the delay, the prospects of success
and the importance of the case.
[4] As the court observed in NUM v
Council for Mineral Technology these facts are often interrelated.
They are not individually
decisive and what the court is required to
do is to make an objective assessment of all of the relevant facts.
As the Labour Appeal
court indicated in that case, a slight delay and
a good explanation might help compensate for prospects of success
which are not
strong. On the other hand, 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 might be, an application for condonation
should
be refused.
[5] In Republican Press (Pty) Ltd v
CEPPWAWU and Gumede and Others
[2007] 11 BLLR 1001
(SCA) the Supreme
Court of Appeal spelt out some of the important considerations
applicable where an employee approaches the court
in respect of an
unfair dismissal. The court here emphasised the imperative of the
speedy resolution of labour disputes, and noted
that the procedures
established by the Act, especially those concerning unfair dismissal
disputes were designed to bring them to
finality on an expeditious
basis.
[6] In the present matter, turning
first to the explanation for the delay, a union official (one
Campbell) apparently received the
award and then decided to take his
annual leave without further regard to the award. He prepared an
opinion on the further prosecution
of any litigation in respect of
the award on 21 January 2008. This opinion was approved by his
superiors on 26 January.
[7] Attorneys were consulted only on 4
February 2008 and the further delay was occasioned apparently by the
need to acquire certain
documentation relevant to the application. Be
that as it may, the founding affidavit was commissioned on 13 March
2008 and as I
have already noted, the application filed only in this
court on 28 March.
[8] There is simply no explanation on
the papers for many of these delays, especially the delay in
consulting attorneys, the delay
between that consultation which took
place on 4 February and the commissioning of the affidavit on 13
March, more than a month
later, in fact, almost six weeks later, the
period within which the application was supposed to have been filed
in the first place.
And there is no explanation for the delay between
the commissioning of the affidavit and the filing of the papers in
this court.
[9] This is not a matter in which one
is dealing with unrepresented laypersons unaware of time limits in
the Act. This is a registered
trade union that is the applicant in
this proceeding. It is fully aware of the time limit that applies and
the purpose importantly
that underlies the incorporation of that
limit into section 145 of the Labour Relations Act.
[10] My colleague Le Grange J recently
had occasioned a remark that it is not open for a trade union, (and
the same applies frankly
to an employers’ association) to come
to this court and to plead the need for internal processes to be
complete prior to
filing applications for review, and to seek
condonation on the basis of any delay that might be occasioned by the
need to exhaust
those internal processes.
[11] The LRA, as I have indicated,
provides a time-limit which is specifically designed to meet the
statutory purpose of the expeditious
resolution of labour disputes.
Trade unions and employer organisations in particular, ought to not
only to be acutely aware of
that purpose, but ought to conduct
themselves in a manner that is conducive to that purpose being
fulfilled.
[12] In my view, the applicant has
failed to provide a reasonable explanation for a delay that is not
insignificant. In terms of
the Mintek case, that in itself is a basis
on which this application ought to be dismissed. However, in so far
as they are relevant,
the applicant’s prospects of success, in
my view, are minimal. The prospects of success in an application such
as the present
must necessarily be determined in relation to the test
to be applied. In the case of Sidumo and Another v Rustenburg
Platinum Mines
and Others
[2007] 12 BLLR 1097
(CC) the Constitutional
Court held that this court is entitled to interfere or intervene and
review and set aside an arbitration
award if, and only if, the award
is a decision that is so unreasonable that no reasonable
decision-maker could come to that decision.
[13] That is a high hurdle for an
applicant in a review application to overcome and this is recognised
by the Labour Appeal Court,
for example, in the Fidelity Cash
Management Services v Commission, for Conciliation, Mediation and
Arbitration and Others
[2008] 3 BLLR 197
(LAC) case where the court
went so far as to note that it would be rare that a decision would
fall into the category identified
by the Constitutional Court and in
respect of which this court is entitled to review and set aside an
award.
[14] In the present case the only
attack on the award is one based on the evidence of one S Hunga. As I
understand, the attack it
is that the commissioner failed to apply
the cautionary rule that ought to be applied to someone who was a
criminal and in the
country illegally on his own admission.
[15] It is clear to me from the face of
the award that the commissioner did apply a cautionary approach. That
much is apparent from
paragraph 3 of the award which reads as
follows:
“The respondent called four
witnesses who testified regarding the charges. The evidence of Samuel
Hunga seem to be pivotal,
as according to him he had worked with the
applicants to whom he referred as his colleagues. The applicants’
representative
has cautioned that I should treat the evidence of S
Hunga judiciously as he was a criminal and was in the country
illegally.”
The commissioner goes on to say the
following at paragraph 4 of the award:
“I have taken heed of this
warning and despite this, found no reason why the evidence of S Hunga
should be rejected since
the documents were found in his possession
by sheer coincidence because if he had not been involved in
kidnapping the respondent
would have been none the wiser.”
[16] The commissioner goes on to
analyse Hunga’s evidence and noted that that evidence disclosed
a number of aspects about
the operations of the applicants which
could only be known by someone who had worked with them closely. From
their own evidence
it was clear to the commissioner that Hunga was
known to them and the commissioner remarked that it was surprising
that he can
be remembered when it was considered that they work with
many people daily. The commissioner concluded as follows in paragraph
6:
“The only conclusion which can be
drawn from this is that the applicants had indeed worked with S
Hunga, selling affidavits
to illegal immigrants. This is supported by
the fact that these affidavits were found in S Hunga’s
possession. How would
he have obtained access to these affidavits
unless they were provided by the applicants who did not specifically
deny that it was
their signatures on them, including the blank ones?”
[17] If one is to apply the Sidumo test
to the merits of the attack against the arbitration award, I fail to
appreciate how it can
be said that the commissioner’s
conclusion in this case falls outside of the band of decisions to
which reasonable people
could come on the same evidence. For that
reason, in my view, there are no prospects of success in this matter
or even if there
were, those prospects are so slight so as not to
warrant the granting of condonation for the late filing of this
application. It
follows then that the application for review must
fail.
[18] In so far as costs are concerned,
this is a matter in which the applicant union has been less than
diligent in prosecuting
the interests of its members. As I have
indicated, this application for review was filed in March 2008, it is
now October 2011.
I accept that there was a postponement in this
matter during December 2010. The reason for that is not apparent to
me from the
file, but even so, there is no reason from the papers
before me to explain the inordinate delay in having this matter set
down
and argued.
[19] The court is entitled in terms of
s 162 of the Act to make orders for costs on the basis of the
requirements of law and fairness.
In this matter it seems to me that
there is no reason why costs should not follow the result. I must add
that I had seriously considered
granting a punitive order for costs.
In circumstances where an application such as this is brought with,
on the face of it, limited
merit and prosecuted with less than due
diligence. In those circumstances, as I have said, it seems to me
that it is fair that
costs ought to follow the result.
The order I make then is the following:
1. The application for condonation for
the late filing of the application for review is dismissed with
costs.
ANDRÉ VAN NIEKERK
JUDGE OF THE LABOUR COURT