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[2016] ZALCPE 5
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Ngcaku v Mandimutsira NO and Others (P558/12) [2016] ZALCPE 5 (1 March 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
no: P558/12
In
the matter between:
SIMPHIWE
NGCAKU
Applicant
and
RUTENDO
MANDIMUTSIRA
N.O.
First Respondent
THE
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
Second Respondent
THE
DEPARTMENT OF CORRECTIONAL SERVICES
Third Respondent
Heard:
14 May 2015
Delivered:
1 March 2016
Summary:
An application for the late filing of a review application cannot
succeed in the absence of a reasonable
explanation for the delay and
prospects of success.
JUDGMENT
LALLIE,
J
Introduction
[1]
In this application, the applicant seeks an order reviewing and
setting aside an arbitration award of the first respondent (‘the
arbitrator’) in which she dismissed the applicant’s claim
of unfair constructive dismissal against the third respondent.
The
applicant also filed an application for condonation of the late
filing of his application for review. The applications are
opposed by
the third respondent. Shortly before this matter was argued, the
third respondent filed an interlocutory application
which is opposed
by the applicant. The condonation application will be considered
first as its outcome will determine whether the
review application is
properly before court.
Condonation
[2]
The applicant was employed by the third respondent as a correctional
officer. Subsequent to disciplinary action being taken
against the
applicant over a number of years, the applicant tendered his
resignation on 24 June 2011, giving notice that his last
day on duty
would be 31 August 2011. He, thereafter, referred an unfair
constructive dismissal dispute to the second respondent
(‘the
bargaining council’). The dispute was arbitrated by the
arbitrator who issued an arbitration award in which she
found that
the applicant was not constructively dismissed but resigned. The
Bargaining Council forwarded the arbitration award
dated 14 August
2012, to the applicant’s erstwhile attorneys who gave the
applicant a copy on 14 September 2012. After receiving
the award, the
applicant took time to consider his position and his prospects of
success. He then approached his current attorneys
on 10 October 2012
with instructions to launch the review application. Owing to the
workload of his attorneys, they only filed
his application on 25
November 2012, a month after the expiry of the six weeks from which
the applicant received the arbitration
award.
[3]
A number of factors have to be considered in the determination of a
condonation application. They include the degree of the
delay, the
reasons thereof, the applicant’s prospects of success in the
main claim, prejudice that the parties will suffer
if condonation is
granted to refuse and whether it is in the interests of justice to
grant condonation.
[1]
It is
trite that when the applicant has no prospects of success in the
principal claim there would be no point in granting condonation
and
condonation should, therefore, be refused.
[4]
In the answering affidavit, the third respondent submitted that the
applicant has no prospects of success in the review application
as he
conceded having resigned at the arbitration. They relied on the
following part of the evidence tendered by the applicant
at the
arbitration:
‘
That is why
I decided to resign because I cannot wait for the Department to
[indistinct]. Then to me I was safe to resign so that
I cannot be
able to apply to other departments, which I was also avoiding to be
dismissed.’
[5]
The third respondent also relied on the evidence of its witness, Mr
Simons, who testified that the applicant cited personal
reasons for
his resignation which was voluntary. The respondent further submitted
that the workload of the applicant’s attorney
is not a
justifiable excuse for condonation.
[6]
In the replying affidavit, the applicant submitted that he would only
reply to those paragraphs to which a reply was necessary.
In
selecting the paragraphs that he considered necessary, he did not
deal with the third respondent’s averments that he had
no
prospects of success because he resigned voluntarily and that his
attorney’s workload was no justifiable excuse for condonation.
Both allegations were left unrefuted and I could find no grounds for
rejecting them.
[7]
The court expressed its displeasure to litigants and their lawyers’
failure to comply with Rules of Court in the following
words in
Grootboom
v NPA and Another:
[2]
‘
The language
used in both
Van
Wyk
and
eThekwini
is unequivocal. The
warning is expressed in very stern terms. The picture depicted in the
two judgements is disconcerting. 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.’
[8]
The applicant sat on his rights for almost a month after receiving
the award before instructing his attorneys to file the review
application. When he approached his attorneys, the six weeks period
within which the review application should have been filed
had
already expired. Service of the award on the applicant’s
erstwhile attorneys who represented him at the arbitration
constituted proper service on him. His present attorneys should have
acted diligently and treated the review application with the
urgency
that it deserved. When the six weeks period is calculated from the
date the applicant received the award, a month’s
delay is not
substantial in the circumstances. The explanation for the delay is
not reasonable. The applicant failed to provide
a reasonable
explanation for the delay and to show reasonable prospects of success
in the review application. His condonation application
can,
therefore, not succeed. As the condonation application has not
succeeded, the review application is not properly before court
and
stands to be dismissed.
[7]
In the premises, the following order is made:
7.1
The application for condonation is dismissed.
7.2
The review application is dismissed
______________
Lallie, J
Judge of the Labour Court
of South Africa
Appearances
:
For the Applicant:
Mr Van der Veen of Messrs Wheeldon Rushmere & cole
For the Third Respondent:
Advocate Laher
Instructed by State
Attorney
[1]
SA Post Office Ltd v CCMA and
Others
[2012] 1 BLLR 30
(LAC) at para 18.
[2]
[2014]
BLLR 1
(CC) at para 34.