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[2015] ZALCJHB 319
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Mavasa and Another v SSSBC and Others (JR1286/11) [2015] ZALCJHB 319 (7 August 2015)
LABOUR
COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
JUDGMENT
C
ase
no: jR 1286/11
In the matter between:
EDWARD
MAVASA
First Applicant
DUMISANI
BALOYI
Second Applicant
and
SSSBC
First Respondent
ZODWA MDLALA
N.O
Second Respondent
SAPS
Third Respondent
Heard:
5 August 2015
Delivered:
7 August 2015
JUDGMENT
WHITCHER J
Introduction
[1]
This is an application to condone the late
filing of a review application of an arbitration award made by the
second respondent
(the arbitrator) on 30 June 2010 but apparently
received by the applicants on 15 July 2010. In the award the
arbitrator found the
dismissal of the applicants by the third
respondent (the employer) was procedurally and substantively fair.
The application was
filed almost 10 months after the expiry of the
six week time limit established by section 145 of the LRA.
[2]
The applicants’ reasons for the delay
can be summarised as follows: they obtained a copy of the award from
the employer on
15 July 2010. They then took the award to the union.
They do not specify when they did this. The union told them they will
formulate
an opinion on whether to proceed with a review application
or not. They only made enquiries about the status of their matter in
or about January 2011 and only discovered then that the union did not
lodge a review. The applicants approached Legal Aid and they
claim
they were informed that they could only be seen by an attorney in two
months’ time and they did not pursue the matter
further with
the Legal Aid. They then sought to raise funds from their relatives
which they only received on 31 May 2011.
[3]
The degree of lateness is significant. The
practice manual indicates an application for review is inherently in
the nature of an
urgent application. For this reason, the Act
prescribes time limits in relation to the filing of the application
and the exchange
of affidavits. In the case of Mathonsi v Mphaphuli
and Others, Van Niekerk J said that it must be appreciated that the
time limits
relevant to the filing and hearing of reviews have the
express purpose of promoting expeditious dispute resolution.
Condonation
should be reserved for those cases where there is a
genuine inability to meet a prescribed time limit: it is not
available to those
who litigate at leisure or as if the time limits
are mere guidelines.
[4]
The applicants’ explanation for their
delay does not disclose a reasonable explanation but rather that they
were clearly complacent
about compliance with the rules of court.
They do not aver that they were unaware of the time periods and that
time periods were
not discussed when they first discussed review
proceedings with the union so I assume they were aware they had until
August 2010
to launch the review. It is noteworthy that the
applicants waited six months before making any enquiries from their
union about
the status of their matter.
[5]
The applicants do not attach any
confirmatory affidavits from their union to corroborate their
assertions. They do not provide any
reasons for their inactivity from
July 2010 to January 2011. This period remains unaccounted for.
[6]
The applicants could not have assumed they
could just file applications at any time and months after the event.
They ought to have
known that there were time periods involved as in
the case of referring dismissal disputes. It was only after a
significant
delay of six months (which is unexplained) that they made
efforts to seek legal assistance.
[7]
And by the time they got the matter moving,
at a slow pace even after the 10 month period, they found the Council
had lost the record.
The Council deals with numerous cases so such
problems are not surprising; though not to be condoned. But the
potential for such
problems is another reason why it is imperative
that parties proceed expeditiously with reviews.
[8]
In the circumstances I am not satisfied
that the applicants have provided a satisfactory explanation for the
delay in filing the
review application.
[9]
On this basis alone, in accordance with the
relevant case law on codonation, the applicants’ prospects of
success are irrelevant.
Be that as it may, an overview of the
applicant’s grounds of review indicates that the primary
compliant is that the arbitrator
allegedly failed to take into
consideration certain evidence and accepted certain evidence.
However, a reading of the award indicates
that the arbitrator
explained in a clear and detailed manner why she accepted or rejected
various evidence and her reasoning in
this regard relies on
appropriate rules of evaluating evidence.
[10]
The commissioner clearly appears to have
performed her functions as a reasonable commissioner ought to.
Lastly, the applicants did
not make out a case in their affidavits
that addressed directly the threshold for review i.e. whether the
award falls into a band
of decisions to which reasonable people could
come on the same material.
Order
(a)
The application to condone the late filing
of the application to review and set aside the second respondent’s
arbitration
award is dismissed with no order as to costs.
_______________________
Whitcher J
Judge of the Labour Court
APPEARANCES
FOR THE APPLICANT:
M Baloyi
Instructed by:
MM Baloyi Attorneys
FOR THE RESPONDENT:
T Molokomme
Instructed by:
The State Attorney