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[2015] ZALCJHB 384
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Portapa t/a Supabets v Moodley NO and Others (JR1027/13) [2015] ZALCJHB 384 (5 November 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
No: JR 1027/13
In
the matter between:
PORTAPA
t/a
SUPABETS
Applicant
and
COMMISSIONER
T MOODLEY
N.O
First Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Second Respondent
JUDITH
LENGWATI
Third Respondent
Heard:
07 October 2015
Delivered:
05 November 2015
Summary:
Review application. Condonation application. Principle governing
condonation.
JUDGMENT
MOLAHLEHI,
J
Introduction
[1]
This is an
application to review and set aside the arbitration award made by the
first respondent (“the Commissioner”)
under case number
GAJB7648-12 dated 15 November 2012 in terms of which the dismissal of
the third respondent (hereinafter referred
to as “the
employee”) was found to have been unfair.
[2]
The
applicant has also applied for condonation for the late filing of the
review application. The application for condonation is
considered
later in this judgment.
The
background facts
[3]
The third
respondent was, prior to her dismissal, an employee of the applicant
and was dismissed for reasons related to poor work
performance. The
dispute was set down for arbitration hearing on 26 October 2012 but
was on that date postponed to 2 November 2012.
The matter was
postponed due to the unavailability of the Third Respondent’s
witness. The parties agreed to meet on 30 October
2012 to discuss a
possible settlement of the dispute.
[4]
On 2
November 2012, the applicant applied again for the postponement of
the hearing on the basis that its understanding was that
the parties
would appear before the CCMA to finalise the agreement. The applicant
contends that the employee had initially indicated
willingness to
accept a settlement of reinstatement but insisted that it be signed
at the CCMA.
[5]
According
to the applicant, the employee changed her view on the day of the
hearing by indicating that she was no longer interested
in
reinstatement but rather a financial compensation for the alleged
unfair dismissal. In his application for the postponement
of the
matter, the applicant indicated that its understanding was that the
settlement agreement based on reinstating would be signed
on the day
of the hearing. It was for this reason that it made no arrangement to
have its witnesses present at the hearing.
[6]
The
applicant further indicated that it was unable to obtain a mandate
for a financial settlement as the person responsible was
overseas.
[7]
The
Commissioner refused to grant the postponement on the basis that he
was not persuaded that the reasons advanced by the applicant
warranted a second postponement. After the refusal of the
postponement, the representative of the applicant left the
arbitration
proceedings. The Commissioner then proceeded with the
hearing and, thereafter, issued a default award in favour of the
employee
as indicated earlier.
The
grounds of review
[8]
The
applicant contends that the refusal to grant the postponement was
unreasonable as its application was
bona
fide
and was not made as a “tactical maneuvers” for delaying
the finalization of the matter. The applicant further contends
that
the Commissioner failed to consider that:
‘
The employee would not suffer
any prejudice if postponement was granted and any prejudice that
would have been suffered by the employee
could have been cured by a
cost order. Refusal to grant a postponement did not serve the
interests of justice and fairness
.’
The
condonation application
[9]
The
condonation application forms part of the review application. It is
dealt with under the hearing and “CONDONATION”
and in its
totality reads as follows:
‘
7.1
As has been pointed out in paragraph 5.13 above, the applicant
erroneously lodged an Application
for Rescission of the Default
Arbitration Award on or about 14 March 2013 at the Third Respondent.
However, upon receipt of the
rescission ruling the applicant sought
legal advice on 6 May 2013 and was advised of the correct procedure
to follow an in the
correct forum. The review application was
prepared as expeditiously as possible one (sic) the applicant was
advised of the correct
process to follow.
7.2
The Applicant therefore humbly submits that it should not be
prejudiced by its lack of knowledge
and/or understand of the Rules
and Procedures of the Third Respondent and the above Honourable
Court.
7.3
It is submitted that the review application is approximately 56 days
out of time. It is
humbly submitted that the Third Respondent has not
been prejudiced by the late filing of the review application. This
coupled with
the Applicant’s prospects of success is a matter
where condonation ought to be granted.
7.4
Accordingly, and should condonation be required, I humbly submit that
the Applicant has
made out a strong case for condonation to be
granted.’
The
principles governing condonation
[10]
The test to
apply in considering whether condonation should be granted or refused
is the interest of justice as stated in
Grootboom
v National Prosecuting Authority
.
[1]
The interest of justice is determined by having regard to the
following factors: (a) the degree of lateness or the extent 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.
[11]
In
Grootboom
,
Zondo, J held that:
‘
51 …
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.”
[12]
In dealing
with the approach to adopt when dealing with prospects of success and
the explanation tendered for the delay, Zondo,
J had the following to
say:
‘
[52]
.... 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 prospective
of success, condonation may be refused
where the delay is excessive, the explanation is non-existent and
granting condonation would
prejudice the other party.’
[2]
[13]
In
Rustenburg
GearBox Center v Geldmaak Motors
,
[3]
it was held that it is not good enough for the applicant to make bald
averment that there are prospects of success in his or her
case.
[14]
Similar to
the present matter, in
eThekwini
Municipality and Ingonyama Trust,
[4]
where the explanation furnished did not cover the entire period and
part of the delay was unexplained, the Constitutional Court
held
that:
‘
As stated earlier, two factors
assume importance in determining whether condonation should be
granted in this case. They are
the explanation furnished for
the delay and prospects of success. In a proper case these factors
may tip the scale against the
granting of condonation. In a case
where the delay is not a short one, the explanation given must not
only be satisfactory but
must also cover the entire period of the
delay. Thus in
Van Wyk v
Unitas Hospital and Another (Open Democratic Advice Centre as Amicus
Curiae
), this Court said in
this regard:
“
An applicant for condonation
must give a full explanation for the delay. In addition, the
explanation must cover the entire period
of delay. And, what is more,
the explanation given must be reasonable. The explanation given by
the applicant falls far short of
these requirements. Her explanation
for the inordinate delay is superficial and unconvincing.”’
[15]
In the
eThekwini
Municipality
case, the Constitutional Court held that an explanation for a period
of delay that was unexplained was necessary and, therefore,
concluded
that the appellant has failed to establish that its non-compliance
with the relevant Rule was pardonable.
[16]
It has
repeatedly been stated in various court cases that condonation is not
a mere formality and is, therefore, not a mere asking.
A proper full
explanation of the period of the delay need to be provided by the
applicant.
[5]
[17]
In
NUM
v Council for Technology
,
[6]
Myburgh, JP stated:
‘
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]
[18]
In
SA
Post Office Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[8]
where
Waglay, DJP, as he then was, said the following:
‘
The degree of delay and the
reason therefor complement each other. While the degree of delay is a
mere arithmetic calculation, it
is significant in relation to the
expeditiousness with which the matter was required to be resolved.
Hence, in matters where importance
is placed upon the speedy and
expeditious resolution of a dispute, even a short delay may not be
excusable unless an explanation
is proffered that sets out the
reasons for the delay which the court finds acceptable. With the
factor of delay, go the prospects
of success, Where it is evident
that the party seeking condonation has no prospects of succeeding in
its principal claim or opposition,
no purpose is served in granting
condonation and the court must in such circumstances refuse to grant
condonation irrespective
of the degree of delay or the explanation
provided, Where the prospects of success are reasonably good or ever
fair then, depending
on the delay and the explanation, consideration
must be given to the prejudice that the parties may suffer before the
discretion
can be exercised on whether to grant the indulgence
sought, The factor of prejudice plays a role only when the delay is
substantial.’
[19]
In
Darries
v Sheriff, Magistrate’s Court, Wynberg and Another
,
[9]
Plewman JA held:
‘
Condonation of the
non-observance of the Rules of this Court is not a mere formality. In
all cases some acceptable explanation,
not only of, for example, the
delay in noting an appeal, but also, where this is the case, any
delay in seeking condonation, must
be given. An appellant should
whenever he realizes that he has not complied with a Rule of Court
apply for condonation as soon
as possible. Nor should it simply be
assumed that, where non-compliance was due entirely to the neglect of
the appellant’s
attorney, condonation will be granted. In
applications of this sort the appellant’s prospects of success
are in general an
important though not decisive consideration.
Where
non-observance of the Rules has been flagrant and gross an
application for condonation should not be granted, whatever the
prospects of success might be.’
Consideration
[20]
The
arbitration award was issued on 15 November 2012. The applicant says
that it received the arbitration award on 7 March 2013.
In its
condonation application, the applicant does not state as to when it
filed the review application. The Court stamp of the
review
application indicates that the review was filed on 14 June 2013, some
54 days after the expiry of the six weeks period prescribed
in terms
of s145 of the LRA.
[21]
The reasons
for the delay as appears from the founding affidavit is that the
applicant adopted an incorrect approach in seeking
to address its
complaint regarding the outcome of the arbitration proceedings. It
unsuccessfully sought the rescission of the default
arbitration award
which has been issued against it.
[22]
The
rescission ruling was made on 2 April 2013. The applicant says that
it then sought legal advice on 6 May 2013. As indicated
earlier, the
review application was filed 14 June 2013, about 30 days after the
rescission ruling.
[23]
It is
apparent from the founding affidavit that the applicant’s
explanation for the delay is limited to the period prior to
receiving
advice that the approach of seeking to have the default arbitration
award set aside by way of a rescission application
was incorrect.
There is no explanation as to the delay after obtaining the legal
advice. Mr Hutchinson, for the applicant, conceded
during the debate
that there was a need to explain this period. He could not, however,
provide any explanation as to why this period
is not explained.
[24]
The 30 days
delay in the context of the review application is a significant
period. It was thus necessary for the applicant to explain
in full
what the cause of the delay was after obtaining the legal advice. The
absence of an explanation for the period of the delay
has to be
regarded as being reprehensible. The extent of the delay and the
failure to tender an explanation for it, carries, in
my view, such a
significant weight that the need to consider prospects of success has
become irrelevant.
[25]
In my view,
the failure by the applicant to explain the delay subsequent to
receiving legal advice is fatal to the condonation application.
In
the circumstances of this case, I see no reason why costs should not
follow the result.
Order
[26]
In the
premises, I make the following order:
1.
The
condonation application for the late filing of the review application
is refused.
2.
The Court
lacks jurisdiction to entertain the review application.
3.
The
applicant is to pay the costs of the third respondent.
_______________________
Molahlehi,
J
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Adv. WJ Hutchinson
Instructed
by:
Fluxmans Inc.
For
the Respondent:
Adv. MJ Maleka
Instructed
by:
M Seleka of Seleka Attorneys
[1]
2014 (1) BCLR 65
(CC) at para 22.
[2]
Ibid at para 52.
[3]
2003 (5) SA 468
(T) at 471C.
[4]
2013 (5) BCLR 497
(CC)
at para 28.
[5]
In
High
Tech Transformers (Pty) Ltd v Lombard
(2012) 33
ILJ
919 (LC) at para 11 and
NUMSA
and Another v Hillside Aluminium
[2005] ZALC 25
;
[2005] 6 BLLR 601
(LC) at para 11.
[6]
[1999] 3 BLLR 209 (LAC).
[7]
Ibid at para 10.
[8]
(2011) 32
ILJ
2442 (LAC) at para 18.
[9]
1998 (3) SA 34
(SCA) at 40H-41E.