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[2015] ZALCD 61
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Department of Sports, Arts & Culture v Public Service Co-Ordinating Bargaining Council and Others (D976/13) [2015] ZALCD 61 (15 October 2015)
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
Not Reportable
Case no: D976/13
DEPARTMENT
OF SPORTS, ARTS & CULTURE
Applicant
And
PUBLIC SERVICE
CO-ORDINATING BARGAINING
COUNCIL
First Respondent
CINDY LEE DICKENS
N.O.
Second Respondent
HOSPERSA OBO I K
NEL
Third Respondent
Heard:
15 October 2015
Delivered:
15
October 2015
Summary:
Condonation
for 8 month delay in filing section 145 review application –
stringent test to be applied – prospects of
success immaterial
where delay egregious and no compelling explanation tendered –
condonation refused – rationale for
stringent test
examined
JUDGMENT
WHITCHER
J
Introduction
[1]
In
an arbitration award, the second respondent found that, in terms of
Resolution 1 of 2007 (a collective agreement), Mrs Nel was
entitled
to remuneration comprised of a basic salary plus 37% of that amount
in lieu of benefits, that the Department had throughout
the period in
issue, that is, 1 April 2008 to 1 April 2011, failed to pay the
additional 37% and that Mrs Nel was entitled to an
award ordering the
Department to make good the shortfall.
[2]
Dissatisfied
with the award, the applicant launched a review in terms of section
145 of the LRA, but did so some eight months outside
of the six-week
period prescribed in section 145(1)(a). The award was served on
the applicant on 12 December 2012 and the
review application was
filed on 30 September 2013. The applicant unsuccessfully attempted to
argue that the application was only
6 months and 16 days late on the
basis that the number of days should exclude the days on which the
court was in recess.
[3]
Before
evaluating the application for condonation, it is useful to consider
first what the test for the grant of condonation is
in the present
circumstances. In a recent judgment,
Makuse
v CCMA & others,
[1]
Myburgh AJ provided a useful and comprehensive survey of the case law
which is set out verbatim below in paragraphs 4 to 13. This
judgment
is especially relevant because it deals with a situation similar to
the one in this case and it is important for this
Court to maintain a
consistent approach to condonation applications in the context of
review applications.
The
test for the grant of condonation
[4]
Labour
law litigation is unique in that it takes place within a system
designed to ensure the effective (and thus expeditious) resolution
of
labour disputes – this being one of the primary objects of the
LRA.
[2]
The need for this, and
the implications of delays, were explained as follows by Ngcobo J in
CUSA
v Tao Ying Metal Industries & others
[2009] 1 BLLR 1
(CC):
“
The
LRA introduces a simple, quick, cheap and informal approach to the
adjudication of labour disputes. This alternative process
is intended
to bring about the expeditious resolution of labour disputes.
These
disputes, by their very nature, require speedy resolution. Any delay
in resolving a labour dispute could be detrimental not
only to the
workers
who may be without a source of income pending the resolution of the
dispute, but it may, in the long run, have
a
detrimental effect on an employer
who may have to reinstate workers after a number of years.”
[3]
(Emphasis added.)
[5]
It
follows from this that condonation for delays in all labour law
litigation is not simply there for the taking. But this is
particularly
so when it comes to delays in the launching of section
145 review applications, especially in the context of individual
dismissals.
Here the courts have made it clear that applications for
condonation will be subject to “strict scrutiny”, and
that
the principles of condonation should be applied on a “much
stricter” basis. This can be traced back to this important
dictum
of the LAC (per Conradie JA) in
Queenstown
Fuel Distributors CC v Labuschagne N.O & others
[2000]
1 BLLR 45
(LAC), which was decided in 1999:
“
In
principle, therefore, it is possible to condone non-compliance with
the time-limit. It follows, however, from what I have said
above,
that condonation in the case of disputes over individual dismissals
will
not readily be granted
.
The excuse for non-compliance would
have
to be compelling
,
the case for attacking a defect in the proceedings would
have
to be cogent
and the defect would have to be of a kind which would result in a
miscarriage
of justice if it were allowed to stand
.
By
adopting a policy of
strict
scrutiny
of condonation applications in individual dismissal cases I think
that the Labour Court would give effect to the intention of the
legislature to swiftly resolve individual dismissal disputes by means
of a restricted procedure, and to the desirable goal of making
a
successful contender, after the lapse of six weeks, feel secure in
his award.
”
[4]
(Emphasis added.)
[6]
This
dictum
,
which has been followed by the LAC in other judgments,
[5]
was explained as follows by Sutherland AJ (as he then was) in
Lentsane
& others v Human Sciences Research Council
(2002)
23
ILJ
1433 (LC):
“
In
that decision Conradie JA pointed out that the principles of
condonation should be
much
stricter
than those which were applied ‘in normal circumstances'. This
remark I understand to be an endeavour to distinguish the
considerations pertinent to challenging an award granted by a
commissioner of the CCMA, in relation to other litigious issues, such
as for example an application for condonation of the late referral of
a statement of case or of defence. The policy reasons for
that
distinction are clear. Once a party has an award in his or her
favour, the failure to respond within the six-week period to
challenge that award gives rise to considerations which are absent at
the outset of litigation, where the table is being set for
debate.”
[6]
(Emphasis added.)
[7]
Consistent
with these judgments, the Constitutional Court has also recognised
that there comes a point at which a successful party
can feel secure
in the decision in question and arrange its affairs accordingly, and
that it is difficult to obtain condonation
for the late launching of
an application for leave to appeal (and the same would apply to a
review) after this point in time. As
the court put it in
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC):
“
There
is an important principle involved here. An inordinate delay induces
a reasonable belief that the order had become unassailable.
This is a
belief that the hospital entertained and it was reasonable for it to
do so. It waited for some time before it took steps
to recover its
costs. A litigant is entitled to have closure on litigation. The
principle of finality in litigation is intended
to allow parties to
get on with their lives.
After
an inordinate delay a litigant is entitled to assume that the losing
party has accepted the finality of the order and does
not intend to
pursue the matter any further
.
To grant condonation after such an inordinate delay and in the
absence of a reasonable explanation, would undermine the principle
of
finality and cannot be in the interests of justice.”
[7]
(Emphasis added.)
[8]
From
about 2007 onwards, this court and the LAC were taken to task by both
the SCA and Constitutional Court for “systemic
delays”
[8]
in the resolution of labour law disputes, particularly in the context
of the final determination of review applications.
[9]
In
Shoprite
Checkers (Pty) Ltd v CCMA & others
[2009] 7 BLLR 619
(SCA), the SCA held that such delays are
untenable:
“
The
entire scheme of the LRA and its motivating philosophy are directed
at cheap and easy access to dispute resolution procedures
and courts.
Speed of result was its clear intention. Labour matters invariably
have serious implications for both employers and
employees.
Dismissals affect the very survival of workers.
It
is untenable
that employees, whatever the rights or wrongs of their conduct, be
put through the rigours, hardships and uncertainties that accompany
delays of the kind here encountered. It is equally unfair that
employers bear the brunt of systemic failure.”
[10]
(Emphasis added.)
[9]
In
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile & others
[2010] 5 BLLR 465
(CC), the Constitutional Court held that whatever
the cause of the problem is, it had to be addressed:
“
It
is unfortunately necessary to make some forthright comments about
this unsatisfactory state of affairs again. There is nothing
inevitable that causes delays in the dispute resolution process under
the provisions of the LRA.
If
there is an underlying cause it may be because problems in the
process are not addressed timeously and are then acknowledged
as
being the acceptable norm
.
…
The
Labour Court and Labour Appeal Court Rules provide for a
court-managed process to ensure that matters are heard in proper
form,
and expeditiously so. If practitioners cause delays, the rules
provide the means for the Labour Courts’ judiciary to exercise
discipline and control over them. As judges we also need to produce
our judgments expeditiously.
Accountability
and responsibility affect and concern us all
.”
[11]
(Emphasis added.)
[10]
As
an institution, the labour courts took heed of this criticism and
responded to it through a range of remedial measures. Amongst
them
was the introduction of a
pro
bono
judge
system in 2011, in terms of which practitioners act as judges on a
pro
bono
basis for a week during recesses, with the specific objective being
to address the back-log in review applications. Allied to this,
in
April 2013, a practice manual was introduced, which contains a number
of provisions (in para 11.2) aimed at speeding up the
determination
of reviews. It records that a review application “is by its
very nature an urgent application”, and requires
review records
to be delivered within 60 days of them being made available by the
CCMA (or bargaining council) and for all the
necessary papers in the
application to be filed within 12 months of the date of the
launch of the application.
[11]
In
addition to this, the legislature found it necessary in the 2014
amendments to the LRA (which took effect on 1 January 2015)
to pass
three amendments to section 145, which are specifically aimed at
expediting the prosecution of review applications. The
first is that
an applicant on review must apply for a hearing date within six
months of launching the review (subsection (5));
the second is that
judgments in review applications must be delivered as soon as
reasonably possible (subsection (6)); and the
third is that the
institution of a review does not suspend the operation of the award,
unless the applicant furnishes security
to the satisfaction of the
court (subsection (7)).
[12]
For
present purposes, the amendment requiring the applicant to apply for
a hearing date within six months of launching the review
stands to be
emphasised. In practical terms, it halves the time for the completion
of the filing of all papers set in the practice
manual. In effect,
the legislature wants reviews determined twice as fast as the target
set by the court itself in its practice
manual.
[13]
The
corrective steps taken by the labour courts as an institution and the
legislature to ensure the expeditious prosecution and
determination
of review applications outlined above underscore the statutory
imperative that labour disputes must be effectively
(and thus
expeditiously) resolved. And the strict scrutiny of condonation
applications relating to the late launching of section
145 review
applications is very much part of this overall scheme of things.
Evaluation
[14]
In
light of the above guiding principles, the delay of some eight months
is egregious. The question then is whether the applicant
(in the
words of the LAC in
Queenstown
Fuel Distributors
)
has tendered a “compelling” excuse for non-compliance.
[15]
The
following emerges from the explanation that has been offered by the
applicant in this case:
[16]
By
no later than 28 December 2012, the applicant had been informed by
both the State Law Advisor and a private firm of attorneys
that there
were no grounds for challenging the award. Both experts advised the
applicant to comply with the award.
[17]
A
“submission” was then prepared aimed at “obtaining
approval for implementing the award” and sent to six
functionaries, consecutively in time. This process took until early
February 2013 and by then the statutory six week period had
already
expired. . As stated by the third respondent, the question arises as
to why this time consuming process had to be engaged
since it was
clear that there was a binding award and the applicant had been
informed by then that there were no grounds to challenge
the award.
[18]
The
functionary indicted that they did not support the recommendations of
the legal experts.
[19]
The
matter was then left to languish until late August 2013 and then the
process of compiling the review application began. The
application
was filed on 30 September 2013. There is no explanation as to why it
was left to languish until August 2013.
[20]
What
is significant is that during this languishing period, the third
respondent made a section 158(1) application to have the award
made
an order of the Labour Court. As submitted by the third respondent,
even this did not revive attention to the problem that
an award was
in existence and no concrete steps were being taken to challenge the
award.
[21]
As
can be seen from the explanation, there are lengthy intervals in the
action taken by the applicant and no reasonable explanation
for such
- let alone a compelling one, as is required where there is an
egregious delay of 8 months. I am mindful of the fact that
the
applicant is a government department and decision-making must follow
certain processes. However, even if one makes generous
provision for
this situation, the delay is excessive and the explanation
unreasonable.
[22]
This
leaves the issue of prospects of success. Here again the judgment of
Makuse
is
instructive. Myburgh AJ, at paragraph 20, noted that:
“
While
an analysis of judgments of the LAC over the years reveals that it
has not always consistently adopted the position that the
failure to
provide a reasonable and acceptable explanation for the delay renders
prospects of success immaterial,
[12]
it endorsed such a position in its recent judgment in
Colett
v Commission for Conciliation, Mediation and Arbitration and others
[2014] 6 BLLR 523
(LAC). Significantly, this was in the context of an
application to dismiss a review application for want of diligent
prosecution.
In an unanimous judgment, Musi AJA held as follows:
“
There
are overwhelming precedents in this Court, the Supreme Court of
Appeal and the Constitutional Court for the proposition that
where
there is a flagrant or gross failure to comply with the rules of
court condonation may be refused without considering the
prospects of
success
.
In
NUM
v Council for Mineral Technology
[[1999]
3 BLLR 209
(LAC) at para 10], it was pointed out that in considering
whether good cause has been shown the well-known approach adopted in
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532C–D … should be followed but:
‘
(T)here
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 good prospects of success, no matter how good the
explanation for the delay, an application for condonation should
be
refused.’
The
submission that the court
a
quo
had to consider the prospects of success irrespective of the
unsatisfactory and unacceptable explanation for the gross and
flagrant
disregard of the rules is without merit.”
[13]
(Emphasis added.)”
[23]
In
the light of this
dictum
,
given that the applicant has not provided a reasonable explanation
for the delay and is guilty of a flagrant and gross failure
to comply
with the prescribed time-period (the application being eight months
late), its prospects of success are immaterial, and
thus need not be
considered.
[24]
In
the result, the condonation application falls to be dismissed, and in
the absence of the applicant having succeeded in obtaining
condonation, the review application also stands to be dismissed.
[25]
Turning
to the issue of costs, the judgment of
Makuse
is
also instructive in this regard. In
Makuse,
the
court held that in the light of the jurisprudence outlined above, it
is unacceptable for a party to bring a review application
eight
months late, and then put the respondent to the expense of defending
a hopeless application for condonation. The judge was
of the view
that it is high time that applicants on review come to learn that
where they bring a review application way out of
time and condonation
is refused, they cannot reasonably expect to escape paying the costs.
I concur with this reasoning.
Order
[26]
In
the circumstances, the following order is made:
1.
application
for condonation is dismissed;
2.
the
review application is accordingly dismissed;
3.
the
applicant shall pay the costs.
________________________________
Whitcher J
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the applicant: Adv N R Rathidili instructed by
the state attorney
On
behalf of the third respondent: Adv P J Blomkamp instructed by
Llewellyn Cain Attorneys
[1]
Makuse v CCMA & others
(JR2795-11, dated 18 August 2015).
[2]
See section
1(d)(iv). The delay in the resolution of labour disputes is “one
of the underlying problems that the LRA seeks
to remedy”:
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile & others
[2010]
5 BLLR 465
(CC) at para 45.
[3]
At para 63.
[4]
At paras 24-25.
[5]
Mbatha v Lyster
& others
[2001] 4 BLLR 409
(LAC) at para 18;
Hardrodt
(SA) (Pty) Ltd v Behardien & others
(2002)
23
ILJ
1229 (LAC) at paras 3-4.
[6]
At para 14.
[7]
At para 31.
[8]
A phrase coined by
the SCA in
Shoprite
Checkers (Pty) Ltd v CCMA & others
[2009] 7 BLLR 619
(SCA) at para 33.
[9]
See this string of
high-ranking judgments:
Republican
Press (Pty) Ltd v CEPPWAWU & Gumede & others
[2007] 11 BLLR 1001
(SCA) at paras 20-22;
Equity
Aviation Services (Pty) Ltd v CCMA & others
[2008] 12 BLLR 1129
(CC) at para 52;
Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau NO & others
[2009] 6 BLLR 517
(CC) at paras 1 and 12;
Shoprite
Checkers (Pty) Ltd v CCMA & others
[2009] 7 BLLR 619
(SCA) at paras 33-34;
Strategic
Liquor Services v Mvumbi NO & others
[2009] 9 BLLR 847
(CC) at para 12;
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile & others
[2010] 5 BLLR 465
(CC) at para 47;
Visser
v Mopani District Municipality & others
[2012] 3 BLLR 266
(SCA) at paras 13-14.
[10]
At para 33.
[11]
At para 47.
[12]
Compare, for
example,
NUM
v Council for Mineral Technology
[1999] 3 BLLR 209
(LAC) at para 10 with
NEHAWU
obo Mofokeng & others v Charlotte Theron Children’s Home
[2004] 10 BLLR 979
(LAC) at para 23.
[13]
At paras 38-39.