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 250
|
|
Sebati v Bidserv Industrial Products Pty (Ltd) t/a G Fox & Co and Others (JR2035/11) [2015] ZALCJHB 250 (7 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
No: JR2035/11
In
the matter between:
SEKATANKA
DANIEL
SEBATI
Applicant
and
BIDSERV
INDUSTRIAL PRODUCTS PTY
(Ltd)
t/a G FOX &
CO
First Respondent
COMMISSIONER
THANDIWE TSHAYANA
Second Respondent
CCMA
Third Respondent
Date
heard: 23 April 2015
Delivered:
7 August 2015
JUDGMENT
RABKIN-NAICKER
J
[1]
This matter came before me as an opposed application for condonation
for the late filing of a review application. The applicant
received a
copy of the arbitration award in question on 13 February 2011,
although it was issued on 19 January 2011. The applicant
launched his
review application on the 25 August 2011. The period of delay is
excessive. The award found his dismissal fair on
substantive grounds
after the applicant, who had worked for the respondent company as a
lorry driver since 1975, refused to obey
an instruction to reload a
truck. His refusal to do so followed an injury at work some days
previously when he hurt a hand.
[2]
The transcript of the arbitration proceedings records the applicant’s
testimony regarding his manager’s instruction
to reload the
truck:
“
He
began to shout at me and said that, “If you do not want to
listen to my instructions I will dismiss you” and that
is when
I responded because he (inaudible) early in the morning, he was
shouting at me, even after now when I was talking to me
so that is
when I responded to say, “You can dismiss me”. That is
when, because I was shouting, I was having a conversation
with Mark
Barnes, then that is when Mark, Martin, took me to the warehouse so
that I could cool myself down because I was still
angry.”
[3]
The applicant did not seek reinstatement at arbitration but
compensation for an alleged unfair dismissal. The applicant has
explained the delay in launching the review in sketchy terms.
However, he avers that the person who represented him at his
arbitration
(one Lehlokoa) told him on the 13 February 2011, after
giving him a copy of the award, that his only remedy was to approach
the
Labour Court, and he suggested that applicant consult an
attorney. The applicant describes his visit thus:
“
It
was on that day, about the 13 February 2011 on my way to collect my
UIF benefits that I decided to via Mr Lehlokoa’s office
to
enquire about the outcome of the arbitration proceedings held on 17
January 2011 seeing that I was not receiving any progress
report from
Mr Lehlokoa though I had given him my cell contact details.”
[4]
He was doing piece jobs on the Reef at the time of the above visit.
After that, he records that he was waiting on his brother
to assist
him financially, which assistance was not forthcoming. During May
2011, when visiting home in Limpopo, he was again advised
to consult
an attorney by an acquaintance (one Mampshika) who is himself an
attorney. As his brother was not forthcoming with financial
assistance, he went back to Mr. Mampshika in July 2011, who then
explained to him what a contingency fee agreement was and took
him to
his attorneys of record on 25 July 2011 for a consultation. There is
no explanation as to why it took a further month for
his attorney of
record to launch the application.
[5]
It is trite that the onus is on the applicant to satisfy the court
that condonation should be granted. In
Melane v Santam
Insurance Co Ltd
1962 (4) SA 531
(A) Holmes JA set out the
applicable principles for a court in considering whether to grant
condonation as follows:
'[T]he 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.... 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.'
[6]
In
NUM
v Council for Mineral Technology
[1]
,
the LAC held that:
'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.'
[7]
The above approach has been endorsed in a long line of LAC
judgments.
[2]
In this matter the
explanation for the delay cannot be considered as reasonable or
acceptable. The applicant himself has averred
he was doing piece jobs
on the Reef during the period and that he had a cell phone. Yet it
appears he only sought to take any steps
to further his case in May
2011 and July 2011 when visiting Limpopo. The months of March, April
and June in their entirety are
unexplained, while he refers to one
meeting in May with Mr. Mampshika and makes a general averment that
his brother’s offer
of assistance was not forthcoming which
appears to be an explanation for the delay between May and July.
[8]
On the basis of the above, there is no need to deal with the
prospects of success in the review application. I note however
that
the grounds for review are not substantiated in the papers. There is
a recitation of the standard grounds in the founding
affidavit, and
no supplementary papers dealing with the record. While one has
sympathy with the applicant who had worked for the
employer for a
great number of years, it is not possible to come to his assistance
on the papers before me.
[9]
In all the circumstances, I make the following order:
Order
1.
The application for condonation is dismissed.
2.
There is no order as to costs.
________________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant:
M.M Mahapa Attorney
For
the First Respondent: B. Bleazard Attorney
[1]
[1999]
3 BLLR 209
(LAC) at 211G-H
[2]
See
in this regard
NUM
& others v Western Holdings Gold Mine
(1994) 15 ILJ 610 (LAC) at 613E;
Zondi
& others v President of the Industrial Court & another
[1997] 8 BLLR 984
(LAC) at 989E-F;
Mziya
v Putco Ltd
(1999)
4 LLD 236 (LAC)
[2002] ZACC 30
; ;
[1999] 2 BLLR 103
(LAC) at 107A-C;
NEHAWU
v Nyembezi
[1999] 5 BLLR 463
(LAC) at 456J-466A;
Waverley
Blankets Ltd v D Ndima & others; Waverley Blankets Ltd v
Sithukuza & others
(1999) 20 ILJ 2564 (LAC) at para 11;
Mgobhozi
v Naidoo NO & others
(2006) 27 ILJ 786 (LAC);
[2006] 3 BLLR 242
(LAC) at para 34 and
Moila
v Shai NO & others
(2007) 28 ILJ 1028 (LAC);
[2007] 5 BLLR 432
(LAC) at paras 34-36.