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[2017] ZALCJHB 30
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Fourie v Commission for Conciliation, Mediation and Arbitration and Others (JR1757/14) [2017] ZALCJHB 30 (20 January 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR1757/14
In
the matter between:
STEPHANUS
JACOBUS FOURIE
Applicant
and
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First Respondent
BERNARD
VAN ECK
N.O
Second Respondent
CUTHBERT
EVANS MAVUSO
Third Respondent
Date
heard: 06 July 2016
Delivered:
20 January 2017
Summary:
The commissioner ought to have considered the prospects of success
when determining the rescission application.
JUDGMENT
COOK
AJ
Introduction
[1]
This
is an opposed application in terms of Section 158(1)(g) of the Labour
Relations Act,
[1]
(LRA) to
review the rescission ruling dated 9 June 2014 handed down by the
commissioner on 14 July 2014 in which the commissioner
refused to
grant an application for rescission of a default award (“the
ruling”).
[2]
The ruling was handed down by
the commissioner on 22 June 2013 (“the default
award”).
[3]
The Applicant also seeks a stay of enforcement of the default award
pending finalisation of the review proceedings as well as
an order
that the dispute be remitted to the Commission for Conciliation,
Mediation and Arbitration (CCMA) for arbitration
de
novo
.
Applicant’s
submissions
[4]
It is submitted that the rescission
ruling failed the test of reasonableness in the following respects:
4.1.
In finding that the
Applicant had failed to provide a satisfactory and adequate
explanation for his delay in launching the rescission
application.
4.2.
In finding that the
degree of lateness was extremely excessive and that the Applicant had
decided that the matter was not important.
4.3.
In
refusing to consider the remainder of the application (i.e. its
merits) or the application for condonation for the late filing
of the
rescission application.
[2]
Relevant
case law
[5]
In
Colett
v Commission for Conciliation, Mediation and Arbitration and
Others
[3]
in unanimous judgment of Musi AJA dismissing a review application for
want of diligent prosecution, held:
“
[38]
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 paragraph [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 532(C-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.’
[39]
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.”
[6]
In the matter of
Grootboom
v National Prosecuting Authority and Another
the court held as follows
[4]
“
22.
I have read the judgment by my colleague Zondo J. I agree with him
that, based on Brummer
12
and
Van Wyk, the standard for considering an application for condonation
is the interests of justice. However, the concept “interests
of
justice” is so elastic that it is not capable of precise
definition. As the two cases demonstrate, it includes: the nature
of
the relief sought; the extent and cause of the delay; the effect of
the delay on the administration of justice and other litigants;
the
reasonableness of the explanation for the delay; the importance of
the issue to be raised in the intended appeal; and the prospects
of
success. It is crucial to reiterate that both Brummer and Van Wyk
emphasise that
the
ultimate determination of what is in the interests of justice must
reflect due regard to all the relevant factors but it is
not
necessarily limited to those mentioned above. The particular
circumstances of each case will determine which of these factors
are
relevant.
23.
It is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case entitling
it to the
court’s indulgence. It must show sufficient cause. This
requires a party to give a full explanation for the non-compliance
with the rules or court’s directions. Of great significance,
the explanation must be reasonable enough to excuse the default.
50.
In this Court the test for determining whether condonation should be
granted or refused is the interests of justice. If it is
in the
interests of justice that condonation be granted, it will be granted.
If it is not in the interests of justice to do so,
it will not be
granted. The factors that are taken into account in that inquiry
include:
(a)
the length of the delay;
(b)
the explanation for, or cause for, the delay;
(c)
the prospects of success for the party seeking condonation;
(d)
the importance of the issue(s) that the matter raises;
(e)
the prejudice to the other party or parties; and
(f)
the effect of the delay on the administration of justice.
Although
the existence of the prospects of success in favour of the party
seeking condonation is not decisive, it is an important
factor in
favour of granting condonation.
51.
The interests of justice must be determined with reference to all
relevant factors. However, 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.
52.
Although the main judgment includes the prospects of success among
the factors to be taken into account, it does not say whether
there
are reasonable prospects of success in favour of the respondents, nor
does it take this factor into account in its assessment
of whether it
is in the interests of justice to grant or refuse condonation.”
Analysis
[7]
Although the explanation in this matter leaves much to be desired, it
cannot be said that it is unacceptable. Further, it cannot
be said
that there has been a gross and flagrant disregard of the Rules.
[8]
In this matter the delay is lengthy but not excessive and the
explanation is poor but it cannot be said that there is no
explanation.
In the circumstances the finding of the commissioner
that there is no need to consider the prospects of success is not a
finding
that a reasonable commissioner should have made. Accordingly,
the commissioner ought to have considered the prospects of success.
[9]
In respect of the allegation that the employee was employed by the
close corporation and not by the Applicant personally, in
the
answering affidavit the employee states::
“
Save
to state that I am a layman and always believed that I was employed
by the Applicant, I admit the remainder of the allegations
in these
paragraphs.”
[10]
It would accordingly appear that the Applicant has good prospects of
success in that if it is proven at arbitration that the
employee was
employed by the close corporation and not the Applicant in his
individual capacity on a project specific basis, then
he has a
bona
fide
defence.
[11]
In the circumstances, I agree that the rescission ruling failed to
test for reasonableness by refusing to consider the merits.
[12]
Having considered all the relevant factors, and I am of the view that
the interests of justice is that rescission ought to
have been
granted. In this matter, the prospects of success tip the scales in
favour of the Applicant and outweigh the poor explanation
and long
delay in this matter.
Costs.
[13]
The Court is of the view that the Applicant ought not to have relied
upon what was stated in the conciliation process.
[14]
Furthermore the opposition to the application was reasonable and it
is apparent from the remuneration earned by the employee
that he is
not a wealthy man. In addition, in light that the Court is of the
view that the explanation proffered was poor, the
Court will not
grant costs in this matter.
Order
[15]
The Court accordingly makes the following order:
15.1
The rescission ruling
dated 9June 2014 under case number GAEK2126-13 is reviewed and set
aside and replaced with the ruling that
rescission is granted.
15.2
The dispute between the
Applicant and the Third Respondent under case number GAEK2126-13 is
remitted to the Second Respondent for
arbitration.
15.3
There is no order as to
costs.
____________
Cook AJ
Acting
Judge of the Labour Court of South Africa
Appearances.
For
the Applicant
: Advocate S J
Mushet
Instructed
by
: Attorney R C Christie
For
the Respondent
: David Morgan
Instructed
by
: In person
[1]
Act 66 of
1995.
[2]
paragraph
27, page 14 of the Applicant’s heads of argument
[3]
(
2014)
35 ILJ 1948 (LAC).
[4]
(
2014)
1 BLLR 1
(CC).