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[2015] ZALCPE 11
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Jama v Transnet Bargaining Council and Others (P 499/12) [2015] ZALCPE 11 (18 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
CASE
NO: P 499/12
DATE:
18 FEBRUARY 2015
Not
Reportable
In
the matter between:
VEVILE
SOLOMON
JAMA
...................................................................................................
Applicant
And
TRANSNET
BARGAINING
COUNCIL
...................................................................
First
Respondent
COMMISSIONER
DANIE
OOSTHUIZEN
..........................................................
Second
Respondent
TRANSNET
RAIL
ENGINEERING
........................................................................
Third
Respondent
Heard:
28 January 2014
Delivered:
18 February 2015
Summary:
The applicant cannot in an application for condonation of the late
filing of his review application seek to rely on the
delay he caused
by not co-operating with the Justice Centre which offered to assist
him.
JUDGMENT
LALLIE
J
Introduction
[1]
This is an application to review and set aside or correct an
arbitration award of the second respondent (the arbitrator) in
which
he found the applicant’s dismissal both substantively and
procedurally fair. It is opposed by the third respondent.
Factual
background
[2]
The applicant was employed by the third respondent until his
dismissal on 27 July 2011. On dismissal, he was a senior technical
worker. On 21 February 2011, the applicant submitted a medical
certificate in which his doctor ordered that he be removed from
working in a noise zone immediately and permanently owing to hearing
loss. The third respondent complied and moved the applicant
temporarily to a different position while looking for a permanent
one. The applicant was not pleased with his new position. He
was on
sick leave from 6 to 20 June 2011 and from 20 to 27 June 2011 and
presented medical certificates for both periods. He did
not return to
work after 27 June 2011. The third respondent asked the applicant to
submit medical certificates justifying his absence
from work. He
submitted none. He did not heed the Respondent’s warning that
should he not report for duty on 23 July 2011,
his contract of
employment would be terminated for misconduct. The applicant was
eventually dismissed. He challenged the fairness
of his dismissal at
the first respondent where the second respondent (the arbitrator)
issued the award which is the subject matter
of this application.
[3]
In terms of section 145 (1) (a) of the Labour Relations Act 66 of
1995 (the LRA), the applicant should have filed this application
within six weeks from the date on which the award was served on him.
He submitted that he became aware of the award on or about
3 January
2012 and his application was filed on 25 October 2012. His version
is, therefore, that his application is about eight
and a half months
late. The award is dated 15 December 2011 and the third respondent
submitted that the application was in fact
filed 10 months late. The
applicant filed a condonation application simultaneously with his
application for review. The condonation
application is also opposed
by the third respondent.
[4]
For the condonation application to be successful the applicant had to
show good cause and in so doing he had to prove,
inter
alia
,
that he had a reasonable explanation for the delay, good prospects of
success, the importance of his case, and prejudice on the
respondents. The extent of the delay is also relevant. In this regard
see
Melane
v Santam insurance Co Ltd
.
[1]
In
F
v Minister of Safety and Security and another (Institute for Security
Studies, Institute for Accountability in Southern Africa
Trust and
Trustees of the Woman’s Legal Centre as amici curiae)
,
[2]
the court added the interests of justice as a factor to be considered
as follows:
‘
It
is now trite that condonation will be granted if it is in the
interests of justice to do so, and if there appear to be reasonable
prospects of success on appeal. Factors to be considered with regard
to the interests of justice include the reason for the delay,
and the
extent of the prejudice, if any, that was suffered by the other
party.’
[5]
The applicant himself conceded that eight month’s delay is
excessive. The explanation forwarded by the applicant for the
lateness of his review application is lack of financial means to
enlist the services of an attorney. He applied for legal aid at
the
Uitenhage Justice Centre which informed him in a letter dated 28 May
2012 that he qualified for legal aid. He was, however,
assisted by a
non-governmental organisation, Ilida, which referred his dispute to
the CCMA instead of referring it to the Labour
Court. He attended the
Uitenhage Justice Centre offices on 8 June 2012 where he consulted
with an attorney who asked him to bring
all the relevant documents
which were at that stage under the control of Mr Randall, an attorney
he had consulted shortly after
receiving the arbitration award. He
was informed by the CCMA in a letter dated 27 June 2012 that it
lacked jurisdiction to entertain
his dispute. Sometime in July 2012,
the applicant visited the Uitenhage Justice Centre to arrange a
consultation with the relevant
attorney. The attorney was too busy to
consult with him and he never contacted him for a further
consultation. In August 2012,
Mrs Banda of Ilida promised the
applicant that he would approach Ilida’s attorneys to assist
him but he waited in vain for
such help. In October 2012, the
applicant visited the offices of the Labour Court where he was
directed to the Port Elizabeth Justice
Centre for assistance.
He received the assistance and his first consultation was held on 22
October 2012. The applicant submitted
that he never intended
abandoning this matter.
[6]
Opposing the application, the third respondent submitted that the
applicant waited for four months after receiving the award
before
seeking assistance from the Justice Centre on 28 May 2012. This
allegation is factually incorrect. Having been told that
he qualified
for legal aid, the applicant took too long to furnish the Justice
Centre with the relevant documents. He only returned
in July 2012 for
consultation and provided no explanation for the delay. He also
failed to file the relevant confirmatory affidavits.
The third
respondent submitted that the applicant’s impecuniosity should
be disregarded as he was aware that he could seek
help from an NGO,
the CCMA and the Justice Centre. It further submitted that the
applicant should not be allowed to hide behind
the conduct of both
Ilida and the Uitenhage Justice Centre and that the applicant’s
conduct is inconsistent with his allegation
of his intention not to
abandon this matter.
[7]
The reason for the delay is a relevant factor in determining whether
it is in the interests of justice that condonation be granted.
It is
not apparent from the reasons provided by the applicant that he, at
all times, intended to pursue this matter. I have considered
that the
applicant was unable to pay the attorney he approached shortly after
receiving the award. Our courts do not deny a litigant
audience only
on the grounds of indigence. I find the explanation of his inability
to pay his attorney reasonable from the period
3 January 2012, when
he was made aware of the award to the date when he took the decision
that he needed to look for alternative
assistance owing to financial
reasons. That date has, however, not been disclosed. He also did not
disclose the date on which he
approached Ilida for assistance. He
only states that he got assistance and was informed in the letter
dated 27 June 2012 that the
CCMA had no jurisdiction to arbitrate the
dispute Ilida had assisted him refer. He further does not disclose
when he applied for
assistance from the Uitenhage Justice Centre, he
merely states that he was advised on 28 May 2012 that he qualified
for assistance.
A further material omission from the applicant’s
explanation is what the attorney at the Uitenhage Justice Centre told
him
in July 2012 after he had been too busy to consult on with him.
There was a duty on the applicant to arrange a further consultation
but he did not, he set on his rights until in August 2012 Mrs Banda
(Banda) promised to arrange further assistance for him. He
only took
an active step in October 2012, when he made enquiries from the
Labour Court. There was a duty on the applicant to take
active steps
to ensure that his review application was filed within the statutory
period alternative to provide a reasonable explanation
for filing it
late. He was required to explain the entire period of lateness but he
only managed to explain a portion thereof.
There is a substantial
portion of the delay which he failed to explain. A proper reading of
his explanation reflects that even
after he had been informed by the
Uitenhage Justice Centre that his application for legal aid had been
successful, he failed to
play his part. He even conceded that he had
no explanation for a substantial part of the delay. The applicant
forwarded no explanation
for not filing Banda’s confirmatory
affidavit. His evidence pertaining to her participation in his
efforts to get assistance
remains hearsay. The absence of the
confirmatory affidavit of the attorney who assisted the applicant at
the Uitenhage Justice
Centre is also not explained. Of significance
is that the applicant’s papers were drafted at the Port
Elizabeth Justice Centre
which could approach the attorneys at the
Uitenhage office. The evidence relating to that attorney will
therefore suffer the same
fate as Banda’s. The applicant sat on
his rights and has himself to blame for the excessive and explained
delay. His explanation
is unreasonable.
[8]
The applicant submitted that he has good prospects of success in the
review application in that the arbitrator committed gross
irregularities which included his failure to play an inquisitorial
role to assist him. He failed to apply his mind to the true
nature of
the dispute before him. He also failed to determine whether the
applicant had breached the third respondent’s policy
and failed
to consider the appropriateness of the sanction of dismissal. The
third respondent denied and submitted that the arbitration
award is
reasonable and the grounds the applicant sought to rely on are untrue
and unfounded. The applicant has good prospects
of success because if
the allegations he has made pertaining to prospects of success are
proved, his review application could be
successful.
[9]
Lastly, the applicant submitted that the prejudice that he is
currently suffering and stands to suffer in the event of the refusal
of this application out-weighs by far any actual and potential
prejudice to the third respondent. He remains unemployed and finds
it
difficult to find alternative employment as a result of the hearing
loss caused by unfavourable working conditions and resulted
in his
dismissal. The third respondent submitted that granting this
application would be unfair to it owing to the in ordinate
delay in
the filing the review application as well as the absence of prospects
of success. It will suffer the prejudice of having
to bring witnesses
to the Labour Court and defend an opportunistic, frivolous and
vexatious case. It further submitted that the
applicant did not deal
with the issue of the importance of his case which is important to it
as it considers allegations of unfair
dismissal in a serious light.
[10]
A consideration of all the circumstances of the applicant’s
case reflects that the applicant has failed to establish
good cause.
He failed to provide reasonable explanation for the delay. He left
substantial and material parts of the delay unexplained.
As the party
who seeks an indulgence, he should have been more candid. In the
absence of a good explanation for the delay, his
good prospects of
success do not help him.
[3]
The applicant did not disclose the importance of this case. While I
accept that he will suffer more prejudice than the third respondent
because he will lose his right to be heard should this application be
refused, he is the author of his own inconvenience and therefore
cannot seek to rely on it. He failed to play his part after being
offered assistance by the Justice Centre which he denied the
opportunity to assist him file his review application earlier. The
prejudice that the third respondent will suffer as a result
of the
delay cannot be underestimated. This Court has a duty to do justice
to both parties. The application can in these circumstances
not
succeed. As the condonation application has been denied, the review
application is not properly before court and stands to
be dismissed.
[11]
In the circumstances, the following order is made:
11.1
The application for condonation is dismissed.
11.2
The application for review is dismissed.
Lallie J
Judge
of the Labour Court of South Africa
Appearance
For
the Applicant: Mrs Van Staden of Justice Centre
For
the Third Respondent: Ms Kazee of Bowman Gilfillian
[1]
1962
(4) 5318 (A).
[2]
(2012)
23
ILJ
93
(CC) at para 28.
[3]
See
Moila
v Shai NO and others
[2007] 5 BLLR 432
(LAC).