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 432
|
|
Makaringe v Ledwaba and Others (JR2726/12) [2015] ZALCJHB 432 (11 December 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not
Reportable
Case Number: JR2726/12
In the matter between:
DOBBIE
MAKARINGE
Applicant
and
COMMISSIONER NELSON
LEDWABA
First Respondent
PHENAMA TRADING
CC
Second Respondent
COMMISSION FOR
CONCILIATION MEDIATION
AND ARBITRATION
Third Respondent
Heard: 14 January 2015
Judgment: 11 December
2015
Summary: Application
for condonation for the late filing of the review application. Good
cause shown. Application granted.
JUDGMENT
MTHOMBENI AJ.
Introduction
[1]
This is an application for the reviewing and setting aside of a
dismissal ruling and the reviewing; the setting aside of a rescission
ruling made by the first respondent on 10 July 2012 and 10 September
2012, respectively; and condonation for the late filing of
this
application. The application is unopposed.
[2]
During May 2012, the second respondent charged the applicant with
absence from work without authorisation on or about March
and April
2012. A disciplinary enquiry was scheduled for 13 May 2012.
[3]
On 8 May 2012, the applicant addressed a letter to the second
respondent requesting further particulars to the charges and that
the
date of the hearing should be changed in that he would have problems
securing transport as it fell on a Sunday. The second
respondent
failed to respond.
[4]
The second respondent proceeded in the applicant’s absence and
terminated his contract of employment and advised him accordingly.
[5]
Aggrieved by his dismissal, the applicant approached the third
respondent and referred a dispute alleging an unfair dismissal.
[6]
The third respondent scheduled an arbitration hearing for 10 July
2012, following an unsuccessful conciliation meeting, and
appointed
the first respondent to arbitrate over the dispute.
[7]
On that day, the first respondent made a dismissal ruling, for the
applicant failed to appear or to be represented at the arbitration
hearing.
[8]
Subsequently, the applicant made applications for the rescission of
the dismissal ruling and condonation for the late filing
of the
rescission application on 6 August 2012 and 15 August 2012,
respectively. The first respondent dismissed both applications.
Condonation
[9]
The applicant received the rescission ruling on 13 September 2012.
Thereafter, he approached the Legal Aid offices in Tzaneen
for
assistance to lodge this application. On 2 November 2012, seeing that
there was no progress in the matter; the applicant approached
the
registrar of this Court. He was advised to make an application for
condonation, for his application was a day late.
[10]
In my view, the delay in bringing this application is not excessive
and the explanation therefor is reasonable and acceptable.
I also
find that, for the reasons I shall set out hereinbelow, that the
applicant has reasonable prospects of success in this application
should condonation be granted. The applicant has shown good cause.
Rescission
ruling
[11]
Owing to road construction at the time, the applicant arrived at the
arbitration hearing fifteen minutes late and the first
respondent
advised him that he had made a dismissal ruling.
[12]
Thereupon, the applicant reported the matter to an employee of the
third respondent who advised him to lodge a complaint, instead
of
making an application for rescission of the dismissal ruling.
Consequently, his application for rescission was twelve days late.
[13]
The applicant submits that the first respondent relied on material
which he had not submitted in his application for rescission.
[14]
In his affidavits in support of the applications for condonation and
rescission the applicant submits that:
“
Came to CCMA
House in Polokwane. I personally spoke to the lady called Analise
(white lady) who advise (sic) me to write a complaint
letter to (sic)
which I waited for response up to date …
I arrived 15 minutes later (sic) due
to road construction which is taking place on Tzaneen road as I was
using public transport
from Giyani.”
[15]
On the other hand, the first respondent remarks that:
“
It is his
submission that upon his arrival he was shocked to learn that his
matter has (sic) been dismissed. He even phoned the
Polokwane office
to raise his dissatisfaction wherein (sic) he was advised to apply
for rescission of the ruling. In his own submission
he went ahead and
proceeded to the Commission’s offices in order to see the
Senior Convening Commissioner. He was again advised
by both Mokgadi
and Annelize that he should apply for rescission.”
[16]
The first respondent concludes that:
“
I find that
the applicant failed to show case (sic) why his application should be
accepted. The applicant did not provide any reasons
for the lateness
of his rescission application. I do not even understand how a person
who had such an (sic) advice timeously could
only decide to apply for
such rescission a month later.
The applicant’s condonation
application stands to fail on those bases alone and as a result
thereof I shall not deal with
the rescission application…
It is my view that indeed if the
applicant did not denounce his cause he should have instantly applied
for rescission of the dismissal
ruling upon being advised to do so.
This did not happen in this matter and he further failed to provide
(sic) reasonable and acceptable
explanation for such delay.”
[17]
From this perspective, in my view the first respondent’s
reliance on material not before him is grossly irregular. There
is no
basis for him to conclude that the applicant had been advised to make
an application for rescission.
[18]
The first respondent disregarded the applicant’s explanation
for the delay that he had been advised to lodge a complaint;
instead
he relied on a point that had not been raised before him.
[19]
It is trite that, when a commissioner determines an application for
condonation for non-compliance with time limits, certain
factors,
including but not limited to the explanation for the delay, should be
considered. In this regard, the first respondent
acted irregularly
when he incorrectly not found that there was no explanation for the
delay, but also when he confined his enquiry
only to the explanation
for the delay. (See
Melane v Santam Insurance Co Ltd
1962 (4)
SA 531
(A) at 532C –F).
[20]
The first respondent’s decision is, in the light of all the
reasons stated above, not one that a reasonable decision
maker could
have reached.
Order
[21]
In the result, I make the following order:
21.1
Condonation for the late filing of this application is granted.
21.2
The rescission ruling, dated 10 September 2012, made by the first
respondent is reviewed and set aside.
21.3
I make no order as to costs.
___________________________
M
Mthombeni
Acting
Judge of the Labour Court
Appearances
For
the Applicant : Mr L
Mashiane
Instructed
by
: Legal Aid of South Africa
For
the Respondent : No appearance