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[2016] ZALCJHB 17
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Magubane v Metal Industries Bargaining Council and Others (JR1217/13) [2016] ZALCJHB 17 (27 January 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 1217/13
Not
Reportable
In
the matter between:
BONGINKOSI
MAGUBANE
Applicant
and
METAL
INDUSTRIES
BARGAINING
COUNCIL
First Respondent
CLAIRE
HOCK
N.O.
Second Respondent
REVIVE
LECTRICAL TRANSFORMERS (PTY) LTD
Third
Respondent
Heard:
21 December 2015
Delivered:
27 January 2016
REASONS
FOR ORDER
MOLAHLEHI,
J
Introduction
[1]
This
is an application to review and set aside the ruling made by the
second respondent (the Commissioner) in terms of which the
condonation application for the late filing of the dispute he had
referred to the first respondent (the bargaining council) was
refused.
[2]
The
applicant referred a dispute concerning an alleged unfair dismissal
to the bargaining council arising from his dismissal by
the third
respondent for the alleged poor work performance. The applicant was
dismissed on 14 December 2012 and referred the dispute
to the CCMA on
29 January 2013.
[3]
The
applicant says that the reason for referring the dispute late was
because he thought that the CCMA offices were closed during
the
December period.
[4]
The
Commissioner in her analysis found that the 15 days delay in filing
the dispute was significant. She further found that if the
applicant
felt aggrieved by his dismissal he ought to have made enquiries about
the closure of the CCMA during the festive season
before he left for
home. Whilst accepting that the CCMA does close its offices between
16 December and 8 January the Commissioner
says that the applicant
could have made enquiries as to when it opens in January after the
December holidays.
[5]
In
considering the prospect of success the Commissioner relying on the
case of
NUM
V Council for Mineral Technology
[1]
found
that there were no prospect of success having regard to the
documentary evidence submitted by the third respondent.
[6]
The
Commissioner also considered the issue of prejudice in weighing
whether or not condonation should be granted or not. In doing
so she
found that it may well be that the applicant may be prejudiced but
that was outweighed by the prejudice that the third respondent
would
suffer in having to defend the application. In this respect the
Commissioner found that the prejudice to be suffered by the
applicant
in the event the refusal of condonation was outweighed by the
consideration of the fact that the third respondent would
have
incurred costs to defend the case.
The
principles governing condonation
[7]
The
test to apply in considering whether condonation should be granted or
refused is the interest of justice as stated in
Grootboom
v National Prosecuting Authority
.
[2]
The
interest of justice is determined by having regard to the following
factors: (a) the degree of lateness or the extent of non-compliance
with the prescribed time frame, (b) the explanation for the lateness
or the failure to comply with time frames, (c) prospects of
success
or
bona
fide
defense in the main case; (d) the importance of the case, (e) the
respondent’s interest in the finality of the judgment,
(f) the
convenience of the court; and (g) avoidance of unnecessary delay in
the administration of justice.
[8]
In
Grootboom
,
Zondo, J held that:
‘
51
… some of the factors may justifiably be left out of
consideration in certain circumstances. For
example, where the delay
is unacceptably excessive and there is no explanation for the delay,
there may be no need to consider
the prospects of success. If the
period of delay is short and there is an unsatisfactory explanation
but there are reasonable prospects
of success, condonation should be
granted. However, despite the presence of reasonable prospects of
success, condonation may be
refused where the delay is excessive, the
explanation is non-existent and granting condonation would prejudice
the other party.
As a general proposition the various factors are not
individually decisive but should all be taken into account to arrive
at a
conclusion as to what is in the interests of justice.”
[9]
In
dealing with the approach to adopt when dealing with prospects of
success and the explanation tendered for the delay, Zondo,
J had the
following to say:
‘
[52]
.... where the delay is unacceptably excessive and there is no
explanation for the delay, there may
be no need to consider the
prospects of success. If the period of delay is short and there is an
unsatisfactory explanation but
there are reasonable prospects of
success, condonation should be granted. However, despite the presence
of reasonable prospective
of success, condonation may be refused
where the delay is excessive, the explanation is non-existent and
granting condonation would
prejudice the other party.’
[3]
[10]
It
is trite that Commissioners of the bargaining council like those of
the CCMA have very wide powers when considering whether to
grant or
refuse condonation. They however have to exercise that
discretion judicially. It is for this reason that the court
will
always be slow to interfere with the exercise of the discretion
unless satisfied that the discretion was exercise in an unfair
and
unreasonable manner.
[11]
In
the present matter it is apparent from the reading of the ruling of
the Commissioner that she applied her mind to the relevant
factors
set out above and based her conclusion on fair and reasonable
principles. It should, in this respect be noted that this
is an
application involving an individual who more importantly failed to
explain the reason for the delay in the January period.
He proffered
no reason as to why he did not approach the CCMA to find out as to
when they would be opening in January.
[12]
It
was based on the above reasons that the following order was made:
1.
The
review application of the applicant is dismissed with no order as to
costs.
________________
E,
Molahlehi
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
In person
For
the Respondent:
M De Villiers of De Villiers & Du Plessis Attorneys
[1]
1999
3 BLLR 209 (LAC),
[2]
2014
(1) BCLR 65
(CC) at para 22.
[3]
Ibid
at para 52.