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[2016] ZALCPE 15
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Mtongana v Standard Bank SA (Pty) Ltd (PR 70/15) [2016] ZALCPE 15 (26 April 2016)
THE LABOUR
COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case Number: PR 70/15
DATE: 26 APRIL 2016
In
the matter between:
ZAMUXOLO
MTONGANA
....................................................................................................
Applicant
And
STANDARD
BANK SA (PTY)
LTD
.....................................................................................
Respondent
Heard:
26 April 2016
Delivered:
26 April 2016
JUDGMENT
Moshoana,
AJ
Introduction
[1]
This is an application for condonation of
the late filing of the review application. In terms of Section 145, a
review of a ruling
or an award ought to be brought within 6 weeks of
receipt of the ruling and/or the award. It is common cause in this
matter that
a review application is out of time. Reference was made
to being 26 months out of time.
Background
[2]
The facts of matter are briefly as follows.
The applicant was employed as a branch manager of the Third
Respondent from the year
2004 until around 30
th
October 2008 when he was dismissed on account of poor performance.
[3]
Aggrieved by his dismissal the applicant
referred a dispute to the CCMA for consideration. On 14 June 2009 an
award was issued in
the Applicant’s favour. The Third
Respondent was aggrieved thereby and launched an application for
review.
[4]
Owing to an incomplete record the matter
was remitted back to the CCMA. On 16 August 2010 another award in the
Applicant’s
favour was issued. Yet again a review application
was launched. By agreement the matter was referred back to the CCMA.
[5]
On 12 February 2013 a ruling was issued
dismissing the Applicant’s referral due to the Applicant’s
absence, who at the
time had indicated through his legal
representative that he was indisposed. The arbitrator had refused an
application for postponement
prior to the ruling to dismiss the
referral.
[6]
The Commissioner who was issuing the ruling
at the time, that is 12 February, somehow, incorrectly so in my view,
advised the Applicant
to apply for rescission. Indeed the rescission
application was launched and was dismissed on the 4
th
of June 2013.
[7]
On or about 31
st
August 2015, the Applicant launched this application for condonation
together with an application for review. The present application
is
opposed by way of a notice that was served on the 21
st
of September 2015 and an opposing affidavit that was filed on the 5
th
of October 2015.
Evaluation
[8]
In terms of the issues that the court ought
to deal with the principles relating to application of this nature
has been crystallised
in the
Melane
judgment. I do not wish to repeat them.
However, before I deal with the merits of the application, I pause to
deal with the issue
that was raised by Mr Woodhouse in the course of
argument. And that issue is that even if condonation is granted the
review application
seeks only to attack the ruling of 4 June 2013
such that even if that is granted, the February 2013 ruling would
stand on the Applicant’s
way.
[9]
Upon enquiry by the court, reference was
made to the application for review, and indeed the first prayer makes
reference to review
of the ruling of the 4
th
of June 2010. In traversing that issue, Ms Mqobi for the Applicant
suggested that there was an agreement that the review to be
brought
is attacking the two rulings. Mr Woodhouse retorted by disputing the
aforesaid agreement and submitted that the review
application only
relates to the ruling of the 4
th
of June 2013. In reply the representative of the Applicant made
reference to certain paragraphs in the papers suggesting that
although the notion of motion made reference to the 4
th
of June 2013 the intention is to attack both the rulings.
[10]
After I had heard the submissions and
adjourned the matter for the purposes of this judgment, in the course
of the lunch break,
there were further references that were emailed
to court for the purposes of demonstrating that intention.
[11]
In my view the Applicant can only be
granted leave or permission as it were to apply review outside the 6
weeks period. Once that
permission is granted the Applicant is good,
as it were, to bring the application outside the 6 weeks period
prescribed by the
Act.
[12]
It is apparent that in order to reduce the
period of the delay the Applicant sought to file the review
application itself on the
31 August 2015 together with the
application under consideration. If condonation is not granted the
process filed in August 2015
becomes an irrelevant step. Put it
differently only when condonation is granted would there be a proper
application for review.
In terms of the rules of this court once a
record has been filed a party is entitled to amend the notice of
motion and also supplement
its case.
[13]
Therefore in terms of the rules the
Applicant can still and still has an opportunity to amend the notice
of motion. As it stands,
it refers to the 4
th
of June ruling. However, it is clearly apparent to the court regard
being had to the papers before me that the ruling of February
2013 is
intended to be attacked.
[14]
Such is apparent from the founding
affidavit in support of this application (
see
page 21 paginated papers
). Reference is
made to the arbitration award dated 12 February 2013. And the
Applicant quotes provisions of the ruling and specifically
states the
following:
14.1
“
The Second Respondent committed
misconduct and gross irregularity in the approach he adopted in
dealing with the matter which was
properly placed before him by Mr
Toni. The Second Respondent seriously misdirected himself and failed
to apply the correct test
where he found that the onus of proof was
on the Applicant rather than the Third Respondent to satisfy him that
there was indeed
a wilful default. The Second Respondent lacked
appreciation of the correct test to be applied considering
application for postponement.
His finding in this regard is not only
wrong it is also arbitrary. The Second Respondent committed gross
irregularity and misconduct
and further misdirected himself when he
misled the Applicant by ordering him to pursue rescission route when
the circumstances
of the case did not warrant rescission. In the
circumstances, the Second Respondent misdirected himself in directing
that the rescission
application be made effectively prevented me from
having my case fully and fairly determined thereby committing gross
irregularity
in the conduct of the arbitration proceeding.”
[15]
All what the court is empowered to do at
this stage is to condone the late filing of the review. The court in
my view cannot do
more. It is upon the indulged party what he or she,
if so advised, seek to attack once the permission to review is
granted.
[16]
Therefore on proper reflection of this
matter, I am of the firm view that the issue of the unamended notice
of motion that refers
to the award of June 2013 is of no consequence
at this point in time. It may well be so that if advised the
Applicant may choose
to attack the February 2013 award only to the
exclusion of the June 2013 ruling or vice versa.
[17]
The court once permitting an application to
be brought outside the prescribed period a court cannot, in my view,
prescribe at the
same or dictate to a party what he or she ought to
attack or not.
[18]
Therefore in the interests of justice the
issue of the notice of motion as it stands is irrelevant to the
consideration whether
condonation ought to be granted or not.
Strictly speaking the application that has been launched, defective
as it may be, was only
to reduce the time period. If, as I have
indicated earlier, the court does not grant condonation, whether he
was seeking to attack
in the notion of motion both the rulings, it
will be of no consequence. Accordingly the point raised by Mr
Woodhouse cannot be
upheld.
Merits
[19]
Turning to the merits of the application. I
am satisfied that the Applicant gave an adequate and reasonable
explanation, which in
my mind is what is required. The fact that the
Respondent finds it lacking does not necessarily suggest that it is
not adequate
and reasonable.
[20]
This is not a matter where a litigant sat
back for months without lifting a finger. There was action to
demonstrate an intention
to ventilate his rights. A
prima
facie
view already exists that his
dismissal was unfair in the form of two favourable awards. How can a
party such as the Applicant with
two favourable awards sit back and
do nothing. To my mind I do not see that happening.
[21]
In any event, I am satisfied that the
Applicant possess excellent prospects of success on the review
application. In my view there
exists prospects to the effect that
refusal of the postponement was not justified and not in the
interests of justice. Accordingly
a review court might find that the
dismissal of the referral was unreasonable
[22]
Regarding the rescission application I am
of the
prima facie
view that it was inappropriate for the application for rescission to
be brought. Should a review court find that the refusal of
a
postponement and the dismissal of the referral, is reviewable, that
maybe the end of the matter in so far as the second award
is
concerned.
[23]
In that regard the review court may order
that the matter should continue to arbitration where parties would
again have an opportunity
to ventilate all the issues relevant to the
fairness or otherwise of the dismissal.
Costs
[24]
I turn to the issue of costs. Having had
regard to the papers much as they were not properly ventilating the
case as it were, in
certain respects lacking in providing the basis
upon which the review application is brought, I do not believe that
this is matter
which the Third Respondent should have opposed.
[25]
Nonetheless in terms of Section 162 of the
LRA, I have discretion to grant costs taking into account the law and
fairness. I do
not believe that the principle of costs following the
result should be ignored.
Order
[26]
Accordingly I make the following order.
(a)
Condonation for the late filing
of the review application is hereby
GRANTED
.
(b)
The Applicant is hereby
granted
leave to launch a review application
outside the prescribed 6 weeks period.
(c)
The
Third
Respondent to pay the costs
of this
application.
A
J MOSHOANA
Judge
of the Labour Court of South Africa
APPEARANCES:
For the Applicant: MS MQOBI
Instructed by:
For the Respondent: MR WOODHOUSE
Instructed by: