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[2017] ZALCJHB 178
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National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR2133/09) [2017] ZALCJHB 178 (10 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not Reportable
Case
no: JR 2133/09
NATIONAL UNION OF MINEWORKERS
H
M MDASHE
First
Applicant
Second
Applicant
and
COMMISSIONER FOR CONCILIATION
MEDIATION & ARBITRATION
COMMISSIONER
GLORIA RABYANYANA N.O.
ANGLO PLATINUM MINES (RUSTENBURG
SECTON)
First
Respondent
Second Respondent
Third
Respondent
Heard
on: 8 February 2017
Delivered: 10 February 2017
JUDGMENT
VAN
NIEKERK J
[1]
This
is an application to review and set aside an arbitration award issued
by the second respondent on 14 April 2009. In her award,
the second
respondent held that the third respondent had unfairly dismissed the
second applicant and ordered that the second applicant
be paid
compensation in a sum equivalent to 2 months remuneration. The
applicant seeks to substitute that order with one of reinstatement.
[2]
The
present application was filed on 13 August 2009, outside of the
applicable time limit. The applicants seek condonation for the
late
filing of the application.
[3]
The
review application was filed eight weeks late. The explanation for
the delay is that the shop steward who represented the second
applicant at the arbitration hearing was not re-elected to that
office during a conference held on 20 March 2009. An arrangement
was
made in terms of which the shop steward would remain in office until
31 July 2009 in order to deal with part-heard cases. It
emerged
afterward that the award in question had not been sent to the first
applicant’s head office for screening; the award
was sent only
on 25 July 2009. The applicants state that there was confusion in the
office as to who would be dealing with the
matter. A consultation
with the attorney was held only on 5 August 2009 and the review
papers were prepared and filed on 13 August
2009. In regard to the
prospects of success, the applicants submitted that they have good
prospects of success and that the second
applicant should be
reinstated.
[4]
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.
[5]
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.
[6] 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.
[7]
In my view, the explanation for what is an excessive delay is
inadequate. In particular, the applicants have failed to provide
a
satisfactory explanation for the delay over the period 6 May 2009,
the date of receipt of the award, to 25 July 2009, when the
award was
forwarded to the first applicant’s head office for screening.
Further, the shop steward’s leaving office
predated the
arbitration award. At the time that a review was considered, he
remained in office solely for the purpose of dealing
with outstanding
matters, including the present. The shop steward only left the
applicant’s provincial office on 31 July
2009, more than 3
months after the award was issued. They applicants fail to set out
any of the steps taken by them during the
above period. In essence,
the only explanation given for the lack of activity for a period
concerned is that the shop steward was
under the impression that
other officials were attending to the review application. The second
applicant provides no explanation
as to why he did not make any
enquiries to confirm that the review was being dealt with. The
applicants are required to explain
the whole period of the delay with
a degree of specificity that will enable the court properly to assess
the merits of the application.
In my view, the applicants have failed
to do so.
[8]
In regard to the applicant’s prospects of success, to the
extent that these are relevant given a failure by the applicants
to
provide a reasonable explanation for an excessive delay, the court
must bear in mind the high threshold that applies in review
applications. The second respondent decided not to reinstate the
second applicant in circumstances where the third respondent had
led
evidence to establish that he is conduct made a continued employment
relationship in coral rubble. This clear from the record
that the
second respondent considered all of the relevant factors and made a
determination on remedy that on the face of it, falls
within a band
of decisions to which reasonable decision-makers could come.
[9] There is a further fundamental
factor that militates against granting condonation. The present
application, as I have indicated,
was filed in August 2009, some 7 ½
years ago. The second applicant was dismissed on 19 December 2008,
more than eight years
ago. In my view, the interests of justice, the
third respondent’s right to certainty, and the statutory
purpose of expeditious
dispute resolution would not be served were
condonation to be granted in a matter that has clearly not been
prosecuted with the
required degree of diligence.
For the above
reasons, I make the following order:
1.
Condonation
for the late filing of the review application is refused.
2.
The
review application is dismissed.
_____________________
Van Niekerk J
Judge
of the Labour Court
APPEARANCES
APPLICANT:
Mr M S Molebaloa, M S Molebaloa Attorneys Inc