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[2015] ZALCJHB 264
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Motsoele v Highveld Steel And Vanadium Corporation/Evraz Group SA and Others (J432/12) [2015] ZALCJHB 264 (14 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: J432/12
MOHAU
EDWIN
MOTSOELE
Applicant
and
HIGHVELD
STEEL AND VANADIUM
CORPORATION/EVRAZ
GROUP SA
First Respondent
THE
METAL AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
Second Respondent
JOSEPH
MPHAPHULI
NO
Third Respondent
Delivered:
14 August 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The Applicant (Motsoele) referred an alleged unfair dismissal dispute
to the Second Respondent (MEIBC) under case number MEGA35901
out of
time. His application for condonation was considered and dismissed by
the Third Respondent (Arbitrator) in a ruling issued
on 23 April
2012. Motsoele brought this application to review and set aside that
ruling. The application is opposed.
Background:
[2]
There is a dispute as to whether the parties’ employment
relationship was terminated by mutual agreement, or whether Motsoele
was dismissed. The First Respondent contends a verbal agreement to
mutually terminate the employment relationship was concluded
on 23
November 2011. It was further contended that Motsoele had reneged on
the verbal agreement by refusing to sign the written
agreement.
Motsoele however contends that there was no such an agreement
concluded, and considers himself to have been dismissed.
[3]
The dispute was initially referred to the Commission for
Conciliation, Mediation and Arbitration on 13 February 2012 under
case number GAJB4776-12, together with an application for
condonation. Motsoele failed to attend a con/arb hearing set down at
the CCMA on 7 March 2012. The dispute was then referred to the MEIBC
on 29 February 2012 with an application for condonation. The
ruling
in this regard is the subject matter of this review application.
The
legal framework:
[4]
One of the only true jurisdictional questions that are likely to
arise at the conciliation phase is whether the referring party
referred the dispute within the time limit prescribed by Section
191(1) (b) of the Labour Relations Act
[1]
.
It therefore follows that once the prescribed time limits have not
been complied with in referring a dispute, any subsequent
consideration of an application for condonation would entail a
jurisdictional fact that the legislature has decided must necessarily
exist for a tribunal to have the power to act. For the purposes of a
referral which is out of time, the provisions of section 191
(2) of
the Labour Relations Act provide for good cause to be shown.
[5]
In
Phaaka
and 19 others v Commissioner Bracks & others
[2]
,
the Labour Appeal Court (per Murphy AJA) held that;
“…
..The
standard of review enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2008 (2) SA 24
(CC)) that in order to succeed in a review, the
applicant must establish that the award was one that could not have
been made by
a reasonable decision-maker, applies only to the review
of determinations of the fairness of a dismissal or labour practice.
It
has no application to the determination of jurisdiction.”
[6]
In line with the above LAC decision, where a ruling on condonation is
sought to be reviewed, it follows that the proper approach
of the
court on review is determine whether the finding made by the
arbitrator was correct or not. In establishing whether the
finding
was correct, it is also appreciated that when determining such
applications, arbitrators are required to exercise a discretion,
taking into account all relevant factors, and in particular, those
identified in
Melane
v Santam Insurance Co. Ltd
[3]
,
where it was held that;
“
In deciding
whether sufficient cause has been shown, the 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, save of course that
if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should
be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects may tend to compensate
for a long delay.
And the Respondent’s interests in finality must not be
overlooked”
[7]
To enable the Arbitrator or the court for that matter to properly
exercise a discretion, a party seeking condonation must set
out all
the facts and circumstances relating to the delay, and most
importantly, must provide a satisfactory explanation and account
for
each period of the delay. Other factors which the courts have pointed
out should be considered is whether it is in the interests
of justice
to grant condonation
[4]
.
The
ruling and evaluation:
[8]
The Motsoele’s main ground of review was that the Arbitrator
did not apply his mind properly, reasonably, or as could
be expected
of him in the determination of the application for condonation before
him. Even where this Court were to determine
the issue
de novo
in order to decide whether the decision of the Arbitrator was correct
or not, such a determination will be based on the evaluation
of the
material that was placed before the arbitrator at the time that he or
she considered the application. It is trite that a
party cannot raise
new material in a review application.
[9]
The application was considered by the arbitrator on the papers and
accordingly there is no record of proceedings. The application
as can
be gleaned from the ruling was treated as unopposed by the
Arbitrator. This issue will further be dealt with elsewhere in
this
judgment. In his ruling, the Arbitrator correctly pointed out that in
order to ‘secure condonation’, an applicant
must show
good cause why condonation should be granted by a consideration of
the degree of the delay, the explanation for the delay,
prospects of
success and prejudice. The Arbitrator further stated that prejudice
was axiomatic to every dismissal and therefore
did not rank as highly
as other factors to be considered. According to the Arbitrator, the
degree of the delay, the explanation
for the delay and prospects have
a more direct bearing on the outcome of the application.
The degree of
lateness:
[10]
In the standard application for condonation, Motsoele had stated that
he was dismissed on ‘
or about 10 December 2011’
,
and that the referral was about 60 days late. In his
substantial application attached to the standard application, his
contention was that the exact date of his dismissal was unknown. He
contended that the delay was in any event not excessive considering
the festive period and commencement of the new year, and also in view
of the fact that there was no clear indication as to when
the
dismissal occurred. The Arbitrator had nevertheless found that the
delay was fifty one days, which in his view was ‘quite
remarkable’. I am in agreement with the Arbitrator that the
delay was indeed excessive.
The
explanation for the delay:
[11]
In his ruling, the Arbitrator had summarised the reason for the delay
in a cursory one liner to the effect that “
The applicant’s
representative’s offices were closed for the year-end break
”.
In explaining the delay as per his founding affidavit, Motsoele
averred that during the latter part of November 2011, he
was
presented with an option to resign and a proposed settlement
agreement by the employer. He had advised the employer that he
would
take the option under consideration.
[12]
Motsoele had however received information on or about 28 November
2011 that the employer had informed his colleagues that he
had
resigned. He had approached his attorneys of record in early December
2011 and communication was sent to the employer advising
that he
tendered his services as he had not resigned. He had received his
salary for January 2012 which to him suggested that his
services had
not been terminated. He had also not received any payment in respect
of the settlement package and according to him
the matter had not
been finalised. It was only on 10 December 2011 that the employer had
confirmed a deemed verbal resignation
to be in effect and informed
him that he was not entitled to return to employment.
[13]
A further reason attributing to the delay in referring the dispute
according to Motsoele was that his attorneys of record had
their
offices closed for the festive season between 15 December 2011 and 16
January 2012. Motsoele averred that he had repeatedly
attempted to
contact his attorneys once they had opened for the New Year, but had
struggled to obtain an appointment. He had managed
to sign the CCMA
referral form and submitted it to his attorneys. However, through no
fault of his, the referral form was only
submitted to the CCMA on or
about 13 February 2012. He had referred the matter to the CCMA as he
was not aware that it ought to
have been referred to the MEIBC. It
was only after being so informed by the employer that he had referred
the matter to the MEIBC,
having forwarded his referral to his
attorneys on 20 February 2012. At that point however, his attorney
was in the Western Cape
and he had only scheduled an appointment with
him upon his return.
[14]
In the ruling, the Arbitrator makes reference to the fact that
opposing papers were ‘
out
of time and no condonation was applied for’
.
He then stated that the ‘
opposing
affidavit is therefore improperly before me’
.
From the reading of the brief ruling, it does not appear that the
First Respondent’s opposing affidavit was taken into account
by
the Arbitrator, contrary to the submissions made on behalf of
Motsoele in these proceedings
[5]
.
There is therefore no basis for any conclusion to be reached that the
Arbitrator committed a ‘certain gross irregularity’
in
this regard as alleged on behalf on Motsoele’s behalf.
[15]
It was submitted on behalf of the First Respondent in these
proceedings that the opposing affidavit was timeously filed at
the
MEIBC and that this Court should take it into account. The difficulty
with these submissions is that for the purposes of this
review
application, the Court can only consider the material that was placed
before the Arbitrator for the purposes the condonation
application.
The Arbitrator stated in his ruling that he had not considered the
First Respondent’s opposing affidavit. Thus
where there is
nothing in the ruling itself to suggest that such evidence was indeed
taken into account, in the absence of an application
for a
cross-review, it would be improper for the Court to take into account
the opposing affidavit. The Arbitrator had found that
it was not
properly before him. In essence therefore, the Arbitrator treated the
application as unopposed and nevertheless refused
to grant
condonation.
[16]
In considering the explanation proffered for the delay, the
Arbitrator stated that the explanation was not satisfactory and
‘failed to impress’. He further stated that even when
note is taken of the unavailability of the legal representative
between 16 December 2011 and 16 January 2012, there was no
explanation as to why Motsoele did not consult with his attorneys
anytime
between 10 December 2011 and January 2012. The Arbitrator
also found that it was inexplicable that Motsoele had failed to
complete
the referral form at any time before 13 February 2012. The
Arbitrator concluded that Motsoele could not solely attribute blame
to the unavailability of his legal representatives. He also took into
account that the dispute was only filed on 29 February 2012,
some two
weeks after the referral forms were signed.
[17]
It is my view that the finding by the Arbitrator that the explanation
for the delay was not satisfactory was correct. It is
trite that an
application for condonation should be filed without delay as soon as
a party to litigation becomes aware of the need
to file such an
application
[6]
. Furthermore, the
applicant must set out all the facts and circumstances relating to
the delay, and most importantly, provide a
satisfactory explanation
and account for each period of the delay
[7]
.
Any period of delay that is unaccounted for, will result in an
indulgence being refused
[8]
.
[18]
As already pointed out, in the standard application for condonation
form, Motsoele had stated that he was dismissed on or about
10
December 2011. He nevertheless in the substantive founding affidavit
stated that he did not know the exact date of dismissal.
This
contradiction is indeed material. On Motsoele’s own version as
at 28 November 2011 he was aware that the employer considered
him as
having resigned. He does not state the exact date but contends that
he had approached his attorneys of record in ‘early
December
2011’.
[19]
Despite the contradictions in the two affidavits, and further on his
Motsoele’s own version, it should be taken that
as at 10
December 2011, it had been confirmed with him that the employer
deemed a verbal resignation to be in effect. He does not
state the
exact date but contends that he had approached his attorneys of
record in ‘early December 2011’. There is
no explanation
as to what steps he took between 10 December 2011 and 15 December
2011 in pursuing his matter before his attorneys’
offices
closed down for the festive season.
[20]
Motsoele does not give any further elaboration as to when he had made
attempts to contact his attorneys once they had opened
their offices
in the New Year. No further details are provided in regards to when
he had ‘
eventually managed to sign the referral to the CCMA
and submitted all necessary documentation to my attorneys’
.
No confirmatory affidavits by the attorneys were placed before the
Arbitrator in this regard.
[21]
A further difficulty in Motsoele’s case is that he sought to
exonerate himself of any blame in the late referral of the
dispute.
As I understand it, he was legally assisted from when he initially
referred the dispute to the CCMA. Having referred the
matter
erroneously to the CCMA, he had then completed the referral forms and
forwarded them to his attorneys of record on 20 February
2012. These
were however submitted to the MEIBC on 29 February 2012 and there is
no account given for the delay during this period,
other than that
the attorney was in the Western Cape and he could not secure an
appointment.
[22]
To the extent that Motsoele seeks to be absolved, or to blame the
delay solely on his attorneys of record, it has always been
held by
courts that a litigant cannot absolve himself from the tardiness of
his chosen legal representative. In dealing with the
issue of
tardiness on the part of legal representatives, Steyn CJ in
Saloojee
& another v Minister of Community Development
[9]
,
held that;
"In
Regal
v African Superslate (Pty) Ltd
1962
(3) SA 18
(AD)
... this court came to the conclusion that the delay was due entirely
to neglect of the applicant’s attorney, and held
that the
attorney’s neglect should not, in the circumstances of the
case, debar the applicant, who was himself in no way
to blame, from
relief. I should point out, however, that it has not at any time been
held that condonation will not in any circumstances
be withheld if
the blame lies with the attorney.
There
is a limit beyond which a litigant cannot escape the results of his
attorney’s lack of diligence or the insufficiency
of the
explanation tendered
.
To hold otherwise might have a disastrous effect upon the observance
of the rules of this court. Considerations
ad
misericordiam
should
not be allowed to become an invitation to laxity. In fact this court
has lately been burdened with an undue and increasing
number of
applications for condonation in which the failure to comply with the
rules of this court was due to neglect on the part
of the attorney.
The attorney, after all, is the representative the litigant has
chosen for himself, and there is little reason
why, in regard to
condonation of a failure to comply with a rule of court, the litigant
should be absolved from the normal consequences
of such a
relationship, no matter what the circumstances of the failure are.…
A litigant, moreover, who knows, as the applicants
did, that the
prescribed period has elapsed and that an application for condonation
is necessary, is not entitled to hand over
the matter to his attorney
and then wash his hands of it. If, as here, the stage is reached
where it must become obvious also to
a layman that there is a
protracted delay, he cannot sit passively by, without so much as
directing any reminder or enquiry to
his attorney… and expect
to be exonerated of all blame; and if, as here, the explanation
offered to this court is patently
insufficient, he cannot be heard to
claim that the insufficiency should be overlooked merely because he
has left the matter entirely
in the hands of his attorney. If he
relies upon the ineptitude or remissness of his attorney, he should
at least explain that none
of it is to be imputed to himself. That
has not been done in this case. In these circumstances I would find
it difficult to justify
condonation unless there are strong prospects
of success."
[23]
It follows therefore that an applicant cannot simply hand over a
matter to his legal representatives, sit back and fold his
arms
without regularly following up on his litigation and/or enquiring on
the progress therein
[10]
.
This is even more pertinent where it is apparent to a litigant that
the time limits of instituting any action may have prescribed.
To the
extent that the Arbitrator had rejected Motsoele’s explanation
that no blame was attributable to him, and further
in the light of
the failure to give a full account of the delays as highlighted
above, it is my view that in the light of the submissions
before him,
the Arbitrator’s finding in this regard was correct. In the
words echoed in
Moila
v Shai N.O. and Others
[11]
,
where,
in an application for condonation, the delay is excessive and no
explanation has been given for that delay, or an “explanation”
has been given but such “explanation” amounts to no
explanation at all, it would not be necessary to consider the
prospects of success.
Prospects
of success:
[24]
In view of the failure to proffer an acceptable and satisfactory
explanation for the delay in referring the dispute to the
MEIBC,
ordinarily, and in line with
Moila
and other authorities, it would not have been necessary for the
Arbitrator to consider Motsoele’s prospects of success. This
point was made by the Labour Appeal Court in
NUM
v Council for Mineral Technology
[12]
where it was held 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”
[25]
The Arbitrator had nevertheless concluded that Motsoele had failed to
address the critical aspects of prospects of success.
Motsoele’s
submissions in his application in this regard were as follows;
He
was employed as part of the Executive Committee. Compensation would
therefore be paid out for the remainder of his intended tenure.
There
was no clear indication or proof that there was a verbal agreement to
mutually terminate the employment relationship, and
his dismissal was
procedurally and substantively unfair.
[26]
If it was Motsoele’s main contention that there was no verbal
agreement to mutually terminate the relationship, it is
inexplicable
that he would contend that there was ‘no clear indication’
or proof that the agreement existed. It is
either on his version the
agreement existed or not. In the
pro forma
application
for condonation, Motsoele in regard to the issue of prejudice stated
that “
I stand to suffer immeasurable damages as a result of
insufficient package offered”.
[27]
In these proceedings, it was argued on behalf of the first respondent
that having regard to the above averments as made in
Motsoele’s
affidavit before the Arbitrator, it was apparent that he had only
referred the dispute because he was unhappy
with the payment he got
as opposed to what he had expected. It was further submitted that he
was paid in accordance with the agreement,
that he had not sought to
set that agreement aside, nor had he made a tender to pay back what
was paid to him in accordance with
that agreement.
[28]
Having had regard to the submissions made by Motsoele in his
application before the Arbitrator in regards to his prospects
of
success, the Arbitrator was correct in finding that Motsoele had not
addressed this issue. In my view, it would not be in the
interests of
justice to grant condonation in circumstances where the basis of a
claim upon which prospects of success are alleged
is not clear. It is
either Motsoele’s claim was based on an alleged unfair
dismissal, or on whether he was entitled to more
compensation
emanating from the alleged agreement to mutually terminate the
employment relationship.
Conclusion:
[29]
Having had regard to the submissions as considered by the Arbitrator
in respect of the degree of lateness in referring the
dispute to the
MEIBC, the lack of a satisfactory or acceptable explanation for the
delay, and failure to sufficiently address issues
of prospects of
success, I am satisfied that the Arbitrator arrived at a correct
decision in dismissing the application for condonation.
I am
therefore satisfied that the Arbitrator’s ruling, even if it
can be said to be too brief, is in any event unassailable.
The
application for review should therefore be dismissed. I have further
had regard to considerations of law and fairness and I
am of the firm
view that a cost order is not warranted in this case.
Order:
i.
The
application to review and set aside a ruling on condonation issued by
the Third Respondent under case number MEGA35901 is dismissed.
ii.
There
is no order as to costs.
__________________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Adv. A
Greyling
Instructed
by:
Lautenberg Morris Attorneys
For
the Respondent:
Mr. M Van Niekerk of Van Niekerk Attorneys
[1]
Bombardier
Transportation (Pty) Ltd v Mtiya N.O
[2010] 8 BLLR 840
(LC) at para [13]
[2]
Case no: JA 3/2014
at para [29]. See also
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008) 29 ILJ 964 (LAC) at para 101
[3]
1962
(4) SA 531
(A) at 532B-E
[4]
See:
NEHAWU
obo Mofokeng and Others v Charlotte Theron Children’s Home
[2004] 10 BLLR 979
(LAC). See also
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC 3
;
2000 (5) BCLR 465
(CC), where the Constitutional Court stated
the following:
‘
It
is appropriate that an application for condonation be considered on
the same basis and that such an application should be granted
if
that is in the interests of justice and refused if it is not. The
interests of justice must be determined by reference to
all relevant
factors including the nature of the relief sought, the extent and
cause of the delay, the nature and cause of any
other defect in
respect of which condonation is sought, the effect on the
administration of justice, prejudice and the reasonableness
of the
applicant’s explanation for the delay or defect.’
[5]
Paragraph 16 and
21 of the Applicant’s heads of argument
[6]
See
Meintjies
v HD Combrinck (Edms) Bpk
1961 (1) SA 262
(A) at 263 H-264B. See also
Saloojee
& another N.N.O v Minister of Community Development
1965 (2) SA 135 (A)
[7]
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and Others
(2010) 31 ILJ 1413 (LC) at para 13.
[8]
See
NUMSA
and another v Hillside Aluminium
[2005] 6 BLLR 601 (LC)
[9]
1965 (2) SA
135
(A) 141B-H
[10]
IMATU on behalf
of Zungu v SA Local Government Bargaining Council and Others
(2010) 31 ILJ 1413 (LC);
[11]
(2007) 28 ILJ 1028
(LAC) at para 34
[12]
1999 3 BLLR 209
(LAC) at p211 para G-H