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[2016] ZALCJHB 69
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Ngcongo v Local Government Bargaining Council and Others (JS820/06) [2016] ZALCJHB 69 (24 February 2016)
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Not reportable
Case no JS 820/06
In the matter between
GOODWIN
NGCONGO
and
THE LOCAL
GOVERNMENT BARGAINING COUNCIL
MS C WEBB
CITY
OF JOHANNESBURG
Applicant
First Respondent
Second Respondent
Third Respondent
Heard:
13 August 2015
Delivered:
14 August 2015
Edited:
24 February 2016
EX-TEMPORE
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award.
The application is brought in terms of section 145 of the
Labour
Relations Act. The applicant was employed as a police officer
by the third respondent until his dismissal in July
2005. He
disputed the fairness of his dismissal and referred that dispute to
the first respondent, the Bargaining Council,
for arbitration.
The arbitration was conducted by the second respondent. She found in
an award dated 20 April 2006 that the
applicant’s dismissal was
both substantively and procedurally fair.
[2]
The applicant says that he received the award on 23 October
2006. On 23 November 2006, he filed an application for
review
in the form of a statement of claim filed under Rule 6. The
matter came before Francis, J, on the 23 September 2008
and was
removed from the roll on the basis that the incorrect procedure had
been followed. The application, of course, ought
to have been
brought under Rule 7A.
[3]
On 14 October 2008, the present application was filed. The
applicant also filed an application for condonation, the review
application being, on his own version, some one year and nine months
late. That period of delay, which is inordinate, must
necessarily be seen in context, and it is a context in which the
applicant has taken some seven years from the date of the filing
of
this application to have the matter set down for hearing.
[4]
The test for condonation is well-established, the court is required
to exercise a discretion, taking into account all the relevant
facts,
the extent of the delay, the explanation for the delay, the prospects
of success and the importance of the case and any
relevant prejudice.
See
Melane
v Santam Insurance Company Ltd
1962
(
4
)
SA
531(A). The present delay, as I have indicated, is an
inordinate one. The statute requires review applications to
be
filed within six weeks of the award coming to the knowledge of the
applicant.
[5]
As regards the explanation for the delay, the following principles
have been found
over the years to be critical for an explanation as
to what is regarded as satisfactory. The court must be appraised of
all the
relevant facts and circumstances relating to the delay.
There must be, in addition, an explanation for each period of the
delay. The applicant must give a full explanation for the
entire period of the delay and it is not sufficient simply to list
or
record significant events which took place without an explanation for
the time that lapsed between these events. In short,
the court
must be placed in a position where it is properly able to assess the
explanation. The explanation in the present
instance is one
that relates to a mistake and assumption by the applicant’s
attorney that the provisions of Rule 6 applied
and that it was
incumbent on him to file a statement of case in terms of Rule 6 in a
review application. There is a limit,
as the courts have
observed, to the extent to which an applicant can rely on the
negligence of his attorney in order to escape
the consequences of the
late filing of process.
[6]
In the present instance, even if I were to grant the applicant the
benefit of the doubt and to find that the explanation proffered
by
his attorney, which is nothing short of negligence on his part, is
acceptable or somehow should exculpate the applicant,
What
becomes critical are the prospects of success. In this regard,
in my view, the prospects of success are minimal, if
they exist at
all. The arbitration award is well reasoned, it is one in which
the Commissioner rationally assesses the evidence
and comes to a
conclusion which, in my view, manifestly meets the threshold of
reasonableness which is to be applied.
[7]
The grounds for review in the present instance are critical because
it is on this basis that the prospects of success must necessarily
be
assessed. The grounds for review are simply that the arbitrator
erred in making particular findings. The case that
is made out
appears to be that the arbitrator ignored certain evidence or gave
undue weight to particular evidence. In short,
the case is that
the arbitrator erred in overlooking the testimony of Inspectors Bosch
and Burger and that the arbitrator erred
in rejecting the evidence of
the applicant. The arbitrator made a credibility finding
against the applicant. She found
that his version was not
credible and that it ought to be rejected. Given the test that
applies, that enunciated by the Supreme
Court of Appeal in
Herholdt
v Nedbank
and
prior to that
Sidumo v Rustenburg
Platinum Mines
,
a decision of the Constitutional Court, Commissioners are allowed to
err, Commissioners are allowed to be wrong Commissioners
are not
permitted, however, to reach decisions that fall outside of a band of
decisions to which reasonable decision makers could
come on the
available material. There is nothing in the present application
that serves to assert that the outcome of the
proceedings under
review fell outside of that band and in that, or that being so, the
applicant has simply failed to make out a
case for review on the
basis of the applicable principles.
[8]
So in the face of an inordinate delay in filing the present
application, an explanation for a delay, in respect of which, which
as I have indicated, I am prepared to grant the applicant the benefit
of the doubt and regard as a neutral factor, the fact that
the
applicant’s prospects of success are non-existent, has the
consequence that the present application stands to be dismissed.
In this regard, I must point out that one of the applicant’s
co-employees, who was dismissed at the same time and who was
also a
party to the arbitration proceedings, separately sought a review and
set aside the award that is the subject of these proceedings,
and on
the 12 October 2009, Freund AJ dismissed that application with
costs. Since the award withstood scrutiny by this court
on that
occasion, I fail to see why the result would be any different in the
present instance.
[9]
I need to say something about review applications. The statute
is designed to ensure the expeditious resolution of labour
disputes.
This court is often reproached by the Supreme Court of Appeal and the
Constitutional Court for what have been termed
“systemic
delays” in the resolution of labour matters. In some
instances, this court as an institution, must
take some
responsibility for those delays. But the present instance is one in
which the applicant, as I have indicated, was dismissed
some ten
years ago, these papers were filed some seven years ago and he now
seeks the intervention of this court. The practice
manual
applicable in this court records that applications for review are not
unlike urgent applications and it is incumbent on
an applicant in a
review application to act with due diligence. The applicant in
the present instance has failed to do so,
and given the degree of the
delay and his failure to offer any explanation for his failure to
prosecute this application with due
diligence, is in my view, in
itself a basis on which the application should be dismissed, however,
I make no decision in that regard.
[10]
I now come to the issue of costs, I was advised from the bar that the
applicant has been unemployed since his dismissal, and
it would seem
to be in those circumstances that an order for costs would be
meaningless. In any event, insofar as the blame
for the delay
is concerned, this seems to be only or partially the fault of his
attorney. So in those circumstances, and
given the broad
discretion that this court has in terms of section 162 of the Act, I
do not intend to make any order for costs.
The
order then is as follows:
1.
The application is dismissed.
2.
There is no order as to costs.
ANDRÉ VAN NIEKERK
JUDGE
OF THE LABOUR COURT