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[2015] ZALCPE 72
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Ngqondi v Fouche and Others (PR02/13) [2015] ZALCPE 72 (8 March 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case no: PR 02/13
In the matter between
EDITH KHOLEKA
NGQONDI
Applicant
and
MARION
FOUCHE
First Respondent
NELSON MANDELA
METROPOLITAN
MUNICIPALITY
Second Respondent
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL
Third Respondent
Heard:
06 May 2015
Delivered:
8 March 2016
Summary:
A condonation application cannot succeed when the applicant has
failed to prove prospects of success
in the main cause and to provide
reasonable explanation for a length delay.
JUDGMENT
LALLIE, J
Introduction
[1] The applicant
approached this court for an order reviewing and setting aside the
arbitration award of the first respondent (‘the
arbitrator’)
in which she dismissed the applicant’s unfair dismissal matter
and ordered her to pay the second and third
respondents’ costs.
The review application was filed late and the applicant applied for
condonation of the delay. Both applications
are opposed by the second
respondent.
Factual background
[2] The second respondent
employed the applicant as a senior accountant. Pursuant to
allegations of misconduct against the applicant,
the second
respondent subjected her to a disciplinary enquiry which found that
she had made herself guilty of misconduct and dismissed
her on 29
December 2010. The applicant appealed against the decision of the
chairperson of the disciplinary enquiry but her appeal
was dismissed.
Aggrieved by her dismissal, the applicant referred an unfair
dismissal dispute to the third respondent. The dispute
was scheduled
for arbitration by the arbitrator on 5 October 2011. The arbitration
was held in the applicant’s absence and
the arbitrator issued
the award which the applicant seeks this court to review and set
aside.
The award
[3] Giving reasons for
her decision, the arbitrator recorded that the arbitration was
scheduled for 5 October 2011, by agreement
between the applicant and
the second respondent who communicated their agreement to the third
respondent. On 3 August 2011, the
third respondent informed the
applicant and the second respondent that the arbitration of their
dispute would be held on 5 October
2011 at the offices of the third
respondent at 33 Heugh Road, Walmer in Port Elizabeth.
[4] At about 08h45 on 5
October 2011, the office of the third respondent informed the
applicant, first and second respondent that
the arbitration would no
longer be held at the scheduled venue but at the second respondent’s
Labour Relations Division at
Fidelity Building. The arbitrator
proceeded to the offices of the third respondent to collect the file
and observed that the floor
of the boardroom which was used for
arbitration hearings was under construction and the furniture was all
over the place. After
the applicant and her attorney, as well as the
second respondent had arrived, the applicant’s attorney
objected to the venue
because it was held “in the employer’s
back yard” and that he had not been consulted about the change
of venue.
The arbitrator’s efforts to persuade the applicant’s
attorney to accept the new venue were unsuccessful. She then
requested
the Regional Secretary of the third respondent to change
the venue. The boardroom of the Cacadu District Municipality (‘the
third venue’) was then made available. The applicant’s
attorney intimated that he was satisfied that the arbitration
could
be transferred to the third venue. When the arbitrator arrived at the
third venue, she found the applicant and her attorney
standing
outside the building. The attorney told the arbitrator that the third
venue was not suitable as the power was out. The
arbitrator suggested
that they go inside the building to have a look but the applicant’s
attorney told her that he and the
applicant had had discussions and
had decided to leave. He communicated the decision of the second
respondent’s counsel.
The applicant’s attorney insisted
that the arbitration be held at the offices of the third respondent
and reiterated the
decision he had taken with the applicant to leave.
The arbitrator pointed out that the attorney was living at the
applicant’s
risk. He responded that he realised it and promised
to fight the matter whenever necessary. He said the arbitration could
continue
in their absence and left with the applicant.
[5] On arrival at the
board room of the third venue, the arbitrator found it suitable and
unaffected by the unavailability of electricity.
The arbitration was
held in the absence of the applicant is in terms of Rule 2.24(2) of
the third respondent’s Rules. In
terms of the same Rules, it is
the third respondent which has the power to determine arbitration
venues. The second respondent’s
counsel sought an order for the
dismissal of the applicant’s matter with costs owing to the
applicant’s absence from
the arbitration. The arbitrator
dismissed the matter and ordered the applicant to pay the third
respondent’s costs in respect
of 5 October 2011 in the amount
of R3 300.00. She further ordered the applicant to pay the wasted
costs of the second respondent
in respect of 5 October 2011, on scale
C of the Magistrates’ Court tariff and on the attorney and
client scale.
Condonation
[6] The review
application should have, in terms of section 145 of the Labour
Relations Act 66 of 1995 (‘the LRA’),
been filed within 6
weeks of the date that the award was served on the applicant. The
arbitration award was served on the applicant’s
attorneys via
fax on 13 October 2011. It is out of time by 505 days. The reason
proffered by the applicant for the delay is that
after receiving the
award, she filed her review application at the High Court. Her
application was opposed by the second respondent
who, in the
answering affidavit the second respondent filed on 29 November 2012,
objected to the jurisdiction of the High Court.
The High Court
application was set down for hearing 25 April 2013. While the
applicant’s attorney was preparing for the hearing,
he
researched the law and came to the conclusion that the second
respondent’s objection to the jurisdiction of the High Court
was well-founded. The applicant then withdrew her review application
at the High Court and filed it at the Labour Court on 12 April
2013.
[7] In the answering
affidavit, the second respondent alleged that the applicant had
failed to file a substantive condonation application
for the
substantial delay. Her reasons for the delay were both insufficient
and impermissible. The second respondent submitted
that it will
suffer great prejudice should the condonation application be granted
as some witnesses may not be available and the
memories of others may
have faded. The delay offends the objective of the LRA which requires
disputes to be resolved expeditiously.
The second respondent
submitted that it has continued to arrange its affairs according to
the outcome of the disciplinary enquiry.
It pointed out that the
applicant failed to deal pertinently with her prospects of success in
the review application, which, in
the second respondent’s view,
do not exist.
[8] In her replying
affidavit, the applicant dealt with the issues raised by the second
respondent in the answering affidavit. The
second respondent
responded by filing an application to strike out paragraphs 9, 10,
11, 12, 13, 26 and 27 of the applicant’s
replying affidavit and
her attorney’s confirmatory affidavit. The basis of the
application is that the allegations in the
impugned paragraphs
constituted new matter which should have been included in the
founding affidavit. The confirmatory affidavit
by the applicant’s
attorney confirms the impugned paragraphs. Although all the
submissions that the applicant sought to rely
on in her condonation
application should have been contained in her founding affidavit,
nothing prevented her from replying to
the allegations made by the
second respondent in the answering affidavit. The impugned paragraphs
are responses to allegations
made in the answering affidavit and
there is, therefore, no basis to have them struck out. The
application to strike out can, therefore,
not succeed.
[9]
The applicant sought to rely on a number of cases including
Melane
v Santam Insurance Co Ltd
[1]
where it was held that in exercising the discretion whether
condonation should be granted the court needs to consider a number
of
interrelated factors which include the degree of lateness,
explanation thereof, prospects of success and the importance of the
case. The court further found that if there are no prospects of
success there would be no point in granting condonation. Reliance
was
further made on the minority judgment of Zondo J in
Grootboom
v NPA and Another
[2]
where he was the only Judge who found that condonation should be
granted. The decision of the court on failure by litigants and
their
lawyers to comply with rules of court was expressed in paragraph 34
of the same judgment as follows:
‘
... One gets
the impression that we have reached a stage where litigants and
lawyers disregard the Rules and directions issued by
the Court with
monotonous regularity. In many instances very flimsy explanations are
proffered. In others there is no explanation
at all. The prejudice
caused to the Court is self-evident. A message must be sent to
litigants that the Rules and the Court’s
directions cannot be
disregarded with impunity.’
[3]
[10]
The extent of the delay is 505 days. It is excessive and requires
reasonable explanation. The applicant’s explanation
is that her
attorney made an error in interpreting the law. Even if the delay
from the date that the applicant filed the review
application at the
High Court can be overlooked. When the applicant’s attorney
received the second respondent’s objection
to the jurisdiction
of the High Court, he should have acted diligently and established
its validity within reasonable time. He
took five months to do the
verification exercise. He was dilatory in executing the applicant’s
review application and his
lack of diligence is inexcusable. In
Waverley
Blankets v Ndima and Others,
[4]
a
decision which was referred to with approval in
SA
Post Office Ltd v
Commissioner
for
Conciliation Mediation and Arbitration and Others,
[5]
it
was held that even where an attorney’s neglect of his client’s
affairs may be inexcusable and despite the blamelessness
of the
client, condonation would still be refused.
[11] The applicant
submitted that her prospects of success are very strong and that the
court would not non-suit or penalise her
on account of a
bona fide
error her legal representative may have made in interpreting the
law on the complicated legal question of the High Court’s
jurisdiction on reviews. In order to establish prospect of success,
the applicant must make allegations, which if proved, will
make her
review application successful. The applicant submitted that the
arbitrator erred in holding the arbitration in her absence.
She
sought to rely on Rule 2.11 of the third respondent’s Rules
which reads as follows:
‘
The Council
must give the parties at least twenty (20) days’ notice, in
writing, of an arbitration hearing, unless the parties
agree to a
shorter period.’
The applicant further
argued that implicit in Rule 2.11 is that the third respondent was
required to give the applicant at least
20 days’ notice in
writing of the date, time and venue of the arbitration hearing.
[12] The applicant also
relied on Rule 2.30 of the third respondent’s Rules which reads
as follows:
‘
2.30
Failure to attend proceedings before the Council
(1)
If a
party to the dispute fails to attend or be represented at any
proceedings before the Council, and that party –
(a)
had
referred the dispute to the Council, an arbitrator may dismiss the
matter by issuing a written ruling...
(2)
An
arbitrator must be satisfied that the party had been properly
notified of the date, time and venue of the proceedings, before
making a decision in terms of subrule (1).’
[13] The applicant
submitted that a necessary jurisdictional fact was absent when the
arbitrator issued the dismissal ruling as
she lacked the power to
issue it. The third respondent failed to give her 20 days’
notice of the change in venue. She was
only given 15 minutes oral
notice of the change of the venue of the arbitration proceedings. The
first respondent, in the applicant’s
view, could not have been
satisfied that she had been properly notified of the date, time and
venue of the proceedings as required
in Rule 2.30 (2) before she
issued the ruling dismissing her matter. The second respondent
correctly argued that the applicant
has no prospects of success in
the review application because she initially agreed that the
arbitration could be held at the third
venue. Her later objection to
the third venue was therefore unfounded.
[14] The applicant was
given 20 days’ notice of the arbitration in terms of the third
respondent’s Rules. She agreed
that the arbitration could be
held at the third venue. She refused to get into the venue to assess
its suitability and took a unilateral
decision to leave. She was
warned by the arbitrator that she was leaving at her own peril. The
third respondent’s Rules do
not provide that parties be given
20 days’ notice of the change of venue. When the venue was
changed, the parties had been
given their 20 days’ notice in
terms of Rule 2.11 and it had served its purpose as all the parties
were ready to proceed
with the arbitration. The Applicant failed to
disclose the basis of her entitlement to 20 days’ notice of the
change of venue
of the arbitration proceedings. She, therefore,
failed to make allegations which if proved would make her review
application succeed.
The extent of the applicant’s lateness in
filing the review application is excessive and she failed to provide
reasonable
explanation for the delay. She also has no prospects of
success in the review application. Her condonation application cannot
be
granted. In the circumstances, the review application is not
properly before court and stands to be dismissed.
[15] In the premises, the
following order is made:
15.1
The application to strike out paragraphs 9, 10, 11, 12, 13, 26 and 27
of the replying affidavit is dismissed.
15.2
The application for condonation of the late filing of the review
application is dismissed.
15.3
The application for review is dismissed.
______________
Lallie, J
Judge of the Labour Court
of South Africa
Appearances
:
For the Applicant:
Mr Daubermann of Peter Daubermann Attorneys
For the Second
Respondent: Advocate Boswell
Instructed by Gray
Moodliar Attorneys
[1]
1962 (4) SA 531
(A) at 532C-E.
[2]
[2014] 1 BLLR 1
(CC).
[3]
Ibid
at
para 34.
[4]
(1999) 20
ILJ
2564
(LAC)
at 1145 I-J.
[5]
(2011) 32
ILJ
2442 (LAC) at para 22.