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[2017] ZALCJHB 175
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Nkamisa v Commission for Conciliation, Meditation and Arbitration and Others (JR1025/12) [2017] ZALCJHB 175 (9 February 2017)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
No:
JR
1025/12
In
the matter between:
ASAVELA
NKAMISA
Applicant
And
THE
COMMISSION FOR CONCILIATION, MEDIATION
&
ARBITRATION
COMMISSIONER
DESMOND LYNCH
AUTOMATED
OUTSOURCING SERVICES (PTY) LTD
First
Respondent
Second
Respondent
Third Respondent
Heard:
7 February 2017
Delivered:
9 February 2017
JUDGMENT
VAN
NIEKERK J
[1]
This
is an application to review and set aside an arbitration award issued
by the second respondent, to whom I shall refer as ‘the
arbitrator’. In his award, the arbitrator upheld the
applicant’s dismissal by the third respondent.
[2]
The
arbitrator’s award was issued on 25 April 2012. The present
application was filed on 8 June 2012, within the time limit
prescribed by s 145 of the Labour Relations Act. The relevant notice
of compliance in relation to the filing of the record was
filed by
the first respondent on 12 June 2012. In terms of the practice
manual, the applicant was required to file a copy of the
record
within 60 days. The record and the applicant’s supplementary
affidavit were filed only on 19 August 2013, more than
a year late.
The applicant seeks condonation for the late filing of these
documents.
[3]
Condonation is not there merely for the asking, nor are applications
for condonation a mere formality (see
NUMSA
v Hillside Aluminium
[2005] ZALC 25
;
[2005] 6 BLLR 601
(LC)). The applicant bears the onus to satisfy the
court that condonation should be granted. In
Novo
Norsdisk (Pty) Ltd v CCMA & others
[2011] 10 BLLR 957
(LAC), the Labour Appeal Court recently observed,
at paragraph 28 of the judgment:
It
seems to me that the aforesaid requirements are equally applicable
when a party seeks condonation. The party seeking condonation
must
satisfy the court that it has a reasonable explanation for its delay
in failing to comply with the time limits applicable
to that party.
Its failure to put before the court a reasonable and acceptable
explanation entitles a court to refuse condonation.
Further, if a
court takes the view, that they are little prospects of success then,
in my view, a court can justifiably refuse
the indulgence being
sought.
[4]
This principle is subject to that established by the Labour Appeal
Court in
National
Union of Mineworkers v Council for Mineral Technology
[1999]
3 BLLR 209
(LAC) in which the LAC said the following:
…
without a reasonable and acceptable
explanation for the delay, the prospects of success are immaterial,
and without prospects of
success, no matter how good the explanation
for the delay, an application for condonation should be refused.
[5]
There is another policy consideration that I must necessarily take
into account. That is the statutory purpose of expeditious
dispute
resolution and the various mechanisms provided for in the Rules and
the practice manual to ensure that review applications
are dealt with
efficiently and within the specified time limits. Indeed, the
practice manual requires that a review application
be prosecuted with
the same degree of diligence as an urgent application.
[6]
In the present instance, in terms of paragraph 11.2 of the practice
manual, a failure by the applicant to file the record within
the
required time period had the consequence that the application was
deemed to have been withdrawn on expiry pf the 60-day period.
Further, in terms of the same paragraph, the failure to take active
steps in the matter for a period in excess of 12 months from
the date
of filing the application and the consequence that the application is
regarded as having lapsed, and the file archived.
The applicant took
no steps to pursue the remedies set out in the practice manual for
any inability to comply with the prescribed
limits.
[7]
Be that as it may, and in relation to the merits of the application
for condonation, the delay in filing the record and the
supplementary
affidavit is excessive. As I have indicated, the delay exceeds 12
months. The applicant’s explanation for the
delay is one that
primarily concerns her financial circumstances. She states that in
mid-July 2012, after having filed the present
application, she
relocated to Umthatha with her husband. On 1 September 2012, the
applicant’s husband managed to secure employment
in
Johannesburg and she returned to Johannesburg on 1 February 2013.
During the course of that month, she met with an attorney
to request
assistance in prosecuting the application that she had filed the
previous year. That attorney was not able to assist
and referred to
another with whom she consulted on 28 March 2013. On account of her
inability to meet her financial commitments,
the applicant paid her
attorney on 6 May 2013 and a quotation for the transcription was
received on 13 June 2013.
[8]
It is well-established that financial hardship or a lack of financial
means is not in itself an acceptable explanation for the
delay in the
matter such as the present. Many applications for review are
prosecuted by persons who are not represented and in
the absence of
financial means, they seek the assistance of the legal aid board, the
pro bono clinic or other assistance. The applicant
was no doubt well
aware of her obligations after filing the present application, but
took no active steps in order to ensure compliance
with those
obligations, or to seek any extension of the time limits. By the time
the applicant sought legal advice during February
2013, she must have
been aware of the consequences of her failure to file the record
within the prescribed time limit. That notwithstanding,
the record
was filed some 4 ½ months after the consultation with her
attorney on 31 March 2013. There is simply no explanation
for the
delay during this period. Even if one were to accept that the
transcribers were instructed only during June 2013 to proceed
to with
the transcription of the record of the proceedings, there is no
explanation for the almost 2 month period that elapsed
between that
date and the filing of the record. There is no explanation as to why
the filing of the supplementary affidavit was
delayed. To the extent
that the applicant’s explanation is premised on the plea of a
lack of funds to obtain legal advice,
this rings hollow in view of
the fact that the applicant had ably represented herself during the
course of the proceedings under
review and that she had drafted the
founding papers in the present application without legal assistance.
The applicant made no
effort to contact the transcribers or to obtain
quotes for the transcription of the record between July 2012 and
March 2013. On
the contrary, during that period, the applicant
appears to have been content to let the application lie dormant. The
interests
of expeditious dispute resolution and the third
respondent’s interests in certainty trump the applicant’s
interest
in pursuing the present application.
[9]
In the absence of a satisfactory explanation for an inordinate delay,
the application for condonation stands to be refused.
In the
circumstances, the applicant’s prospects of success in the main
application are not relevant. However, even if I were
to have regard
to those prospects, the applicant’s grounds for review disclose
a case more in the nature of an appeal than
a review. This court is
entitled to intervene if and only if the conclusion to which the
arbitrator came is so unreasonable that
no reasonable decision-maker
could come to that decision on the available evidence. This is not
the case that is made out in the
founding affidavit but even so, it
does not appear to me, having regard to the record, that the
arbitrator committed any material
misdirection that had the
consequence of a decision that falls outside of a band of decisions
to which reasonable people could
come. As the LAC has observed more
than once, the hurdle facing an applicant in a review application is
set high, and it is not
often that this court will interfere.
For the above reasons, I
make the following order:
1.
Condonation
for the late filing of the record and the Rule 7A (8) affidavit is
refused.
2.
The review
application is dismissed
_______________________________________
VAN NIEKERK J
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant:
In person
For
the Respondents: Adam Ketley, Bouwer Cardona Inc