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[2015] ZALCPE 67
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Kwani v Commission for Conciliation, Mediation and Arbitration and Others (PR09/13) [2015] ZALCPE 67 (11 December 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
no: PR 09/13
In
the matter between
KHAYALETHU
RAYMOND
KWANI
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
RIAAN DE LANGE N.O
Second Respondent
SCHNELLECKE
SOUTH AFRICA (PTY) LTD
Third Respondent
Heard:
15 April 2015
Delivered:
11 December 2015
Summary:
The applicant’s failure to make averments of his prospects of
success in the review application constituted
a fatal defect to his
application to have his review application reinstated.
JUDGMENT
LALLIE
J
[1]
The applicant approached this Court for an order in the following
terms:
‘
1.
Reinstating the pending review application under case number PR 09/13
which is deemed to have been
withdrawn in terms of paragraph 11.2.3
of the current practice manual.
2.
Condoning the late filing of this application if necessary.
3.
Granting an extension of time period in which the record is to be
filed’.
The
application is opposed by the third respondent. When this application
was argued, it was submitted on behalf of the applicant
that he
sought an order in terms of the first two prayers.
[2]
The facts of this matter as they appear in the founding affidavit are
that the applicant was employed by the third respondent.
Subsequent
to his dismissal for misconduct he, with the assistance of his trade
union, NUMSA, referred an unfair dismissal dispute
to the first
respondent where, on 28 February 2013, the second respondent issued
an award in favour of the third respondent. Dissatisfied
with the
arbitration award, NUMSA, on 22 April 2013, filed an application at
the Labour Court to have the award reviewed and set
aside. Two days
later the third respondent filed a notice of opposition. The
applicant was under the impression that NUMSA would
see the review
application to finality.
[3]
The applicant visited the offices of NUMSA on 1 July 2013 to enquire
about the progress of the review application. Mr Baardman
(“Baardman”), a NUMSA representative, handed him a letter
the contents of which were that NUMSA would no longer represent
him
as it was of the view that this review application had no merit. In
the same month he sought to enlist the services of an attorney.
He
was, however, unsuccessful as he could not afford the R7000.00 he was
required to pay. As he was looking for alternative employment,
he
secured a job for August, September and October 2013. His income was
insufficient and he could still not afford the fees his
attorney
required. On 7 November 2013, he was advised by a neighbour to seek
advice from the Labour Court where he was directed
to the Legal Aid
office. He applied for legal aid on the same day. On 11 December
2013, he received a letter from the Legal Aid
office advising him of
his appointment for 14 January 2014. From 14 January 2014, the Legal
Aid office took the necessary steps
to assist him. Part of the
assistance was securing a quotation for the transcription of the
arbitration record from a firm of transcribers.
It advised that
transcribing the record would cost R7000.00. It addressed a letter to
the Labour Court and the third respondent’s
attorneys seeking
consent to file the record late. He submitted that the letter was not
answered. The respondent, however, tendered
evidence of its response
to the letter. The application at hand was eventually filed on 18
February 2014.
[4]
Opposing this application, the third respondent pointed out a number
of defects to the applicant’s case, some of which
are fatal.
Amongst them is the submission that the applicant made no submissions
on his prospects of success in the review application.
The legal aid
office did not furnish a guarantee to pay for the transcription of
the record should the review application be reinstated.
The third
respondent submitted that the applicant failed to explain the delay
fully and left part of it unexplained. He did not
disclose the income
he generated from his alternative employment thus failing to prove
whether he could afford to pay his attorney.
[5]
The third respondent submitted that the applicant erred in basing his
application on paragraph 11.2.2 read with paragraph 11.2.3
of the
Practice Manual of the Labour Court (“the practice manual”)
as paragraph 11.2.2 and 11.2.3 relate to the filing
of the
arbitration record within 60 days of the date on which the applicant
is advised by the register of the availability of the
record. Nothing
precluded the applicant from filing an application for the
reinstatement of the review application even though
the delay in
filing the arbitration record exceeds 60 days. The application at
hand is in essence a condonation application. There
was therefore a
duty on the applicant to establish good cause, the test which
required the applicant to prove that he has prospects
of success in
the review application. His failure to make averments on his
prospects of success is fatal to his application because
absent
prospects of success condonation may not be granted. In this regard
see
NUMSA
and Others v Western Holdings Goldmine
[1]
.
[6]
The purpose of this application is to reinstate the review
application. The reason proffered by the applicant for his failure
to
prosecute the review application within the set time period is that
he could not afford the R7000.00 the transcription of the
record
costs. The Legal Aid office which assists the applicant in this
application gave no guarantee for the payment of the transcription
costs as the applicant submitted that should this application be
successful, the record will be filed, subject to the funds being
allocated. There is therefore a possibility that even if this
application is granted funds may not be allocated and the applicant
will remain unable to pursue his review application. Failure to
guarantee payment of the transcription costs defeats the purpose
of
this application. The applicant’s failure to make submissions
on his prospects of success in the review application and
the absence
of the guarantee by the Legal Aid office to pay the costs of the
transcription of the record rendered the application
fatally
defective.
[7]
In the premises, the following order is made:
7.1
The application is dismissed.
___________________________
Lallie,J
Judge of the Labour Court
of South Africa
APPEARANCES
For
the Applicant:
Ms Van Staden
of the Justice Centre
For
the Third Respondent: Advocate Partington
Instructed
by:
Chris Baker
[1]
(
1994)
15
ILJ
610 LAC