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[2015] ZALCJHB 102
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Mabunda v G4S Cash Services (JR 1634/10, J 173/13) [2015] ZALCJHB 102 (4 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: JR 1634/10
Case
no: J 173/13
DATE:
04 MARCH 2015
In
the matter between:
OSCAR
MABUNDA
.................................................................................................................
Applicant
And
G4S
CASH
SERVICES
.........................................................................................................
Respondent
Heard:
20 November 2014
Delivered:
4 March 2015
Summary:
The applicant needs to show good cause for his or her application for
condonation for late filing of a review application
to succeed. He or
she may not rely on self-created prejudice.
JUDGMENT
LALLIE
J
Introduction
[1]
Two applications were before court, namely, a review application and
an application to make an arbitration award an order of
court. The
factual background of this matter is that having been dismissed by
G4S Services SA (Pty) Ltd (“the respondent”)
Mr Mabunda
(“the applicant”) referred an unfair dismissal dispute to
the National Bargaining Council for the Road Freight
Industry (“the
bargaining council”). Commissioner Johnston of the bargaining
council (“Commissioner”) issued
an award on 16 March
2010, in which she found the applicant’s dismissal
substantively unfair and ordered the respondent to
reinstate him and
pay him an amount of R68 400.00 within fourteen days of the receipt
of the award. The respondent did not comply
with the award. On 13
July 2010, the respondent filed a review application under case
number JR 1634/10. On 6 February 2013, the
applicant filed an
application in terms of section 158 of the Labour Relations Act 66 of
1995 (“the LRA”) to make the
arbitration award an order
of court. It was opposed by the respondent. It was set down for 29
October 2014 on which day it was
postponed to 20 November 2014 to be
heard on the same day as the review application.
The review
application
[2]
The review application was filed on 13 November 2010 outside the six
weeks period within which it had to be brought. The applicant
did not
file opposing papers because the respondent had not complied with
Rule 7A (8). The respondent filed an application for
condonation of
the late filing of the review application, on 30 September 2013. The
applicant did not file opposing papers but
argued his opposition on
the respondent’s papers.
[3]
The arbitration award was issued on 16 March 2010 and the review
application was filed on 13 July 2010 about two months late.
The
condonation application was however, filed on 30 September 2013. The
reason given on behalf of the respondent in the founding
affidavit
for the delay is a misunderstanding between the respondent and its
legal representatives. Upon receipt of the award,
the respondent’s
attorneys sent it to the respondent to obtain instructions as to who
would file the review application as
the respondent usually drafts
and file its review applications. It is common practice that the
respondent would file the review
papers and there after hand the
matter over to its attorneys. The attorneys were therefore of the
view that the respondent had
followed the usual practice while the
respondent was of the view that the attorneys had filed the review
application. The respondent
submitted that it was not in wilful
default in filing the review application on time. It will suffer
great prejudice should this
application not be granted compared to
prejudice the applicant will suffer should it be granted. It has at
all material times prosecuted
the review application diligently
without seeking to delay finalisation of the dispute. It expressed
as unfortunate the bargaining
council’s inability to provide
portions of the record or its failure to maintain a record of the
arbitration proceedings.
It further submitted that it took all the
necessary steps to determine whether a record exists which they would
have reconstructed
but they could not find it. Lastly, the respondent
submitted that this matter be remitted to the bargaining council for
arbitration.
[4]
The respondent’s submissions focused mainly on the review
application and not much on the principles governing condonation.
Opposing the application the applicant argued that no explanation was
given for the late filing of the condonation application.
Its
founding affidavit consists of hearsay evidence in the absence of a
confirmatory affidavit by a person with personal knowledge
of the
facts the deponent lacks personal knowledge of. It was further argued
that the respondent failed to show good cause. The
applicant
continues to suffer prejudice as the award in his favour was issued 4
years ago. The respondent knew as early as October
2011 that the
record was not available and failed to follow the necessary
procedures which would have ensured that the review application
was
dealt with without unnecessary delay.
[5]
The importance of complying with rules of court cannot be
overemphasised. It was expressed as follows in
Grootboom
v NPA and Another:
[1]
‘…
One
gets the impression that we have reached a stage where litigants and
lawyers disregard the Rules and directions issued by the
Court with
monotonous regularity. In many instances very flimsy explanations are
proffered. In others there is no explanation at
all. The prejudice
caused to the Court is self-evident. A message must be sent to
litigants that the Rules and the Court’s
directions cannot be
disregarded with impunity’.
[6]
In determining whether the respondent has shown good cause for the
condonation of the late filing of the review application,
I have
considered the principles laid down in
Melane
v Santam Insurance Co Ltd
[2]
on which the requirement
that condonation should be granted in the interests of justice is
based.
[7]
The reason proffered by the respondent for filing the review
application late is that there was a misunderstanding between itself
and its attorneys. No one both at the respondent business or the
office of their attorneys took responsibility for the
misunderstanding.
The founding affidavit to the condonation
application consists of inadmissible hearsay evidence which justifies
the dismissal of
the condonation application. While the review
application was filed about two months late and the explanation
proffered for its
lateness covers the 2 months period only. The
condonation application was filed years later and no explanation has
been proffered
for the delay from the date of the filing of the
review application to the date of the filing of the condonation
application. There
was a duty on the respondent to explain the entire
period of lateness and the respondent failed to do so. No explanation
was given
for the six months delay between the date on which the
founding affidavit was attested to and the date on which the
application
was filed.
[i]
In
Superb
Meat Supplies CC v Maritz
[3]
it was held that it has never been the law that a litigant will be
excused if the blame lies with that litigant’s the
attorney.
[8]
The respondent also sought to rely on the bargaining council’s
failure to provide it with a copy of the arbitration record.
While I
acknowledge the difficulty the respondent found itself in as a result
of the bargaining council’s failure, the respondent
was not
without alternative relief which would have ensured that its matter
was dealt with expeditiously. The respondent could
have approached
the Judge President in terms of the Practice Manual of the Labour
Court of South Africa for assistance when the
bargaining council made
it impossible for it to file the arbitration record. The respondent
has therefore failed to forward a reasonable
explanation for the
delay in filing the review application.
[8]
The respondent’s argument that it stands to suffer more
prejudice than the applicant should this application be unsuccessful
has no merit. The respondent is the author of its own inconvenience
and can therefore not seek to rely on it. It is further responsible
for its inability to rely on the record to prove its prospects of
success in the review application. It is the applicant who continues
to suffer prejudice as a result of the respondent’s delay. He
is unable to exercise his rights in terms of the arbitration
award
and bring this matter to finality.
[9]
I have considered the authority that the respondent sought to rely
on. It is of no relevance as it is based on facts which are
distinguishable from those of the present matter. A consideration of
all the circumstances of this matter and the requirement of
fairness
to both parties, points to one direction, that it is in the interests
of justice that condonation be refused. As the condonation
application has been refused the review application is not properly
before court and is dismissed.
Application in
terms of section 158 (1) (c) of the LRA:
[10]
On 6 February 2013, almost 3 years after the award in favour of the
applicant was issued, the applicant filed an application
in terms of
section 158 (1)(c) of the LRA to make the arbitration award an
order of court. The application is opposed by
the respondent on the
grounds that the review application in which it sought an order
setting aside the award, is a ripe for hearing.
The file has been
indexed and paginated since March 2012. The respondent submitted that
this application is unnecessary and ill-advised
as had the applicant
perused the court file before filing it, he would have realised that
the hearing of the review application
was delayed because a set down
date had not be allocated.
[11]
It is common cause that the respondent has not complied with the
arbitration award which forms the subject matter of this application.
The respondent’s submission that this application is
ill-advised because it was filed when the review application was ripe
for hearing has no substance. The filing of a review application does
not stay the execution of an arbitration award. This application
was
filed just before the award prescribed at a time the applicant had no
alternative but to file it in order to protect his rights
in terms of
the award. As the review application has been dismissed there is no
fear that granting this application will make the
review application
superfluous. The circumstances of this matter require that Ithe
exercise my discretion in favour of the applicant
as he has made out
a case to have the arbitration award to be made an order of this
court. It is common cause that the respondent
has not complied with
the award under case number gpr fbc 6487.
[12]
I could find no reason both in law and fairness for not granting a
costs order against the respondent. The applicant should
not be out
of pocket when asserting his rights in terms of an arbitration award
which was granted in his favour in 2010.
[13]
In the premises the following order is made:
13.1
The application for condonation of the late filing of the review
application is dismissed.
13.2
The application for review is dismissed.
13.3
The arbitration award under case number Gprfbc6487 and dated 16 March
2010 is made an order of court.
13.4
The respondent is ordered to pay the applicant’s costs.
Lallie
J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant: Mr Faurie of Du Toit Gerber
For
the Respondent: Mr Wheatley of De Wet and Jordan
[1]
[2014]
1 BLLR 1
(CC) at para 34.
[2]
1962
(4) (SA) 531 at 532C-F]
[3]
(2004)
25
ILJ
96 (LAC)