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[2015] ZALCJHB 73
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Roto v Commission for Conciliation, Mediation and Arbitration and Others (JR1546/14) [2015] ZALCJHB 73 (5 March 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT,
JOHANNESBURG
Case
no: JR 1546/14
DATE:
05 MARCH 2015
Not
Reportable
In the matter
between:
SIBONGILE
ROTO
..................................................................................................................
Applicant
And
THE COMMISSION
FOR CONCILIATION
MEDIATION AND
ARBITRATION
..........................................................................
First
Respondent
MAKHOKHA-USIBISI,
M
N.O
..............................................................................
Second
Respondent
DIS-CHEM
PHARMACIES
......................................................................................
Third
Respondent
Heard: 19
November 2014
Delivered: 05
March 2015
Summary:
Application for condonation – late filing of the review
application – The principle governing condonation application
restated.
Judgment
Molahlehi J
Introduction
[1]
This is an application in terms of which
the applicant seeks a review of the ruling made by the seconds
respondent (“the Commissioner”)
under case number
GAJB22/13 dated 11 February 2013. In terms of that ruling the
Commissioner dismissed the applicant’s application
for
condonation of the late referral of the dispute to the first
respondent (“the CCMA”). The applicant also seeks
condonation for the late fling of the review application.
Background
[2]
The applicant was dismissed on 14 November
2012, following charges of dishonesty, fraud, forgery and alteration
of records relating
to issuing a letter to his creditor on the third
respondent’s letterheads.
[3]
The dispute was referred to the CCMA on 24
December 2012, some nine days late. As a result the preliminary point
which the Commissioner
had to consider first was the condonation
application which was refused and accordingly the applicant’s
claim was dismissed.
The applicant was unhappy with the outcome of
his condonation application and consequently instituted the present
proceedings.
The review application is also late by about 18 weeks.
The application is opposed by the third respondent.
Condonation for
the late filing of the review application.
[4]
The applicant says that the review
application is 4 months late and the first reason for the delay is
that after receiving the arbitration
ruling and not knowing what to
do he went back to the CCMA, where he raised with them the fact that
there was another referral
which was timeously made. He thought
having brought this to their attention they would change their
decision and conclude that
there was no need for condonation.
[5]
According to the applicant he was told by
the CCMA that he needed to go back to his attorney and obtain “copies
of proof that
there was another referral that was made in time.”
He went to the offices of Mr Gqaza, the person who he had thought was
an attorney but discovered later that he was not. He was told at his
offices that he was away on leave and would be back after three
weeks.
[6]
After three weeks when he returned to the
offices of Mr Gqaza he was told that he moved to Sandton. He went
repeatedly over a period
of five weeks looking for him in Sandton to
no avail.
[7]
After giving up on Mr Gqaza the applicant
approached the
pro bono
office on 17 July 2013, where he was advised that he needed to review
the ruling of the CCMA.
[8]
The applicant contends in his founding
affidavit that he would suffer prejudice if condonation was refused
and that refusal would
not serve the interest of justice and
fairness. He further contends that he has good prospects of success
when regard is had to
the review application. The grounds of review
which are set out in the applicant’s founding affidavit reads
as follows:
“
6.1
The Second Respondent did not apply her mind to the issues placed
before her and has thus committed gross irregularity in that;
6.1.1
Had she looked at the referral made on the 14
th
December
2012 she should have realized that the condonation application was
not necessary – infact my application was on
time.
7.
In the light of the above, I submit that prospects of success are
strong in my matter as it is patently clear that the Commissioner
perused the files(s) selectively. She was not even supposed to deal
with condonation application.”
Legal
principles
[9]
The
test to apply in determining whether to grant or refuse condonation
application has been stated by the Constitutional Court
in
Grootboom,
[1]
in the following
terms:
“
50
In this Court the test for determining whether condonation should be
granted or refused is the interests of justice. If it is
in the
interests of justice that condonation be granted, it will be granted.
If it is not in the interests of justice to do so,
it will not be
granted. . .
51. The interests of
justice must be determined with reference to all relevant factors.
However, some of the factors may justifiably
be left out of
consideration in certain circumstances. For example, where the delay
is unacceptably excessive and there is no explanation
for the delay,
there may be no need to consider the prospects of success. If the
period of delay is short and there is an unsatisfactory
explanation
but there are reasonable prospects of success, condonation should be
granted. However, despite the presence of reasonable
prospects of
success, condonation may be refused where the delay is excessive, the
explanation is non-existent and granting condonation
would prejudice
the other party. As a general proposition the various factors are not
individually decisive but should all be taken
into account to arrive
at a conclusion as to what is in the interests of justice.”
[10]
The
interest of justice is determined by having regard to the following
factors: (a) the degree of lateness or the extend of non-compliance
with the prescribed time frame, (b) the explanation for the lateness
or the failure to comply with time frames, (c) prospects
of
success or
bona
fide
defense in the main case; (d) the importance of the case, (e) the
respondent’s interest in the finality of the judgment,
(f) the
convenience of the court; and (g) avoidance of unnecessary delay in
the administration of justice.
[2]
[11]
In conducting the enquiry into whether condonation application
should be granted or be refused the following broad principles must
be born in mind:
a.
the Court has a discretion which is to be exercised judicially after
taking into account all the facts and the circumstances
of the case
before it.
b.
that the factors which are taken into account in conducting the
enquiry in the interest of justice, the relevant factors are
not
individually decisive but are interrelated and must be weighed
against each other- the strong compensating for the weak.
c.
the applicant has to give an explanation that shows how and why the
default occurred.
d.
that the court could decline the granting of condonation if it
appears that the default was wilful or was due to gross negligence
on
the part of the applicant.
e.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.
[3]
.
f.
that
the applicant should bring the application for condonation as soon as
it becomes aware of the lateness of its case.
[4]
Evaluation
[12]
It is trite that in an application for
condonation the applicant must provide full explanation of all the
aspects of the delay.
In other words as it is usually put,
condonation is not there for the taking.
[13]
In the present instance according to the
applicant the delay was occasioned first by having to obtain the
referral document which
was with his representative. The applicant
does not state what these documents were. It seems to me, that on the
applicant’s
version, the relevant documents that the CCMA may
have required would relate to the first referral which is alleged to
have been
made on time. These are the documents which the applicant
refers to in his founding affidavit as being attached to the review
application.
Except for stating that the documents are attached to
the review application the applicant does not state where and when
did he
find them.
[14]
The applicant says he approached the
pro-bono office on the advice of an unidentified acquaintance on 17
July 2013 and the review
application was filed on 25 July 2013; about
a week later.
[15]
The Court stamp in the notice of motion
indicates that the condonation application was filed on 11 February
2015, some six months
and about three weeks since the filing of the
review application.
[16]
It is clear in our law that condonation
application must be made as soon as the applicant becomes aware of
the need for it. It follows
that in a condonation application the
applicant is required to indicate the time when he or she became
aware of the need to make
an application for condonation. In the case
of the late filing of the condonation application the applicant is
required to explain
such a delay.
[17]
In my view the period of the delay in
filing the review application is material and that of the condonation
application is itself
excessive. In the absence of the explanation
for the delay in the filing of the condonation application the
applicant’s applications
stands to fail for that reason alone.
[18]
The applicant contends that the Court
should assume on the basis that the document attached to his review
papers, confirming the
extension of the 30 day period is proof that
the first referral was made on time. There is no evidence, however,
that this was
before the Commissioner at the time the condonation
application was considered. There is also no evidence that the
document confirming
the consolidation of the two matters served
before the Commissioner.
[19]
In the condonation application in the CCMA,
the applicant stated that the reason for the failure to comply with
the 30 days requirement
was because:
“
I
was not (of) aware of the 30 day period I was only notified when I
arrived at the CCMA.”
[20]
In my view the explanation proffered by the
applicant for the late filing of the review application is
unsatisfactory and unacceptable.
Taking into account the
unsatisfactory explanation and the failure to explain the delay in
relation to the filing of the condonation
application, I am of the
view that it is not necessary to consider the prospects of success.
[21]
In the premises the applicant’s
application for condonation of the late filing of his review
application stands to fail. It
follows therefore, that the review
application also stands to be dismissed. I do not believe that it
would be proper to allow costs
to follow the result.
Order
[22]
In the premises the applicant’s
application for the condonation of the late filing of his review
application is dismissed
with no order as to costs.
E
Molahlehi
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: D. Tlau of SASLAW
For
the Respondent: N. Preston of Cliffe Dekker Hofmeyr Inc.
[1]
Grootboom
v National Prosecuting Authority and Another
(2013) 34
ILJ
282
(LAC).
[2]
See
Foster
v Stewart Scott Inc
(1997)
18
ILJ
367
(LAC).
[3]
See
Melane
v Santam Insurance Co Ltd
,
1962 (4) SA 531
(A) at 532C-F. The prospects of success or
bona
fide
defence on the other hand mean that all what needs to be determined
is the likelihood or chance of success when the main case
is heard.
See
Saraiva
Construction (Pty) Ltd v Zululand Electrical and Engineering
Wholesalers (Pty) Ltd
1975
(1) SA 612
(D) and
Chetty
v Law Society,Transvaal
1985
(2) SA at 765A-C. It is however not good enough for the applicant to
make bald averment that there are prospects of success
in his or her
case. See
Rustenburg
GearBox Centre v Geldmaak Motors
2003 (5)SA 468 (T). In dealing with the approach to adopt when
dealing with prospects of success and the explanation Zondo
J in
Grootbom
had the following to say: ‘[51]. . .
where
the delay is unacceptably excessive and there is no explanation for
the delay, there may be no need to consider the prospects
of
success. If the period of delay is short and there is an
unsatisfactory explanation but there are reasonable prospects of
success, condonation should be granted. However, despite the
presence of reasonable prospects of success, condonation may be
refused where the delay is excessive, the explanation is
non-existent and granting condonation would prejudice the other
party’.
[4]
This
means that the applicant in a condonation application has a duty to
explain also the delay in filing the condonation application
if that
is the case. Failure to provide an explanation for the delay in
filing a condonation application could be fatal to the
application.
See
Allround Tooling (Pty) Ltd v NUMSA and Others
[1998] 8 BLLR 847
(LAC) at
para
8 and
NEHAWU
v Nyembezi
[1999] 5 BLLR 463
(LAC).