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[2017] ZALCJHB 179
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AMCU obo Mahomane v Commission for Conciliation, Meditation and Arbitration and Others (JR2563/10) [2017] ZALCJHB 179 (13 February 2017)
LABOUR
COURT OF SOUTH AFRICA
JOHANNESBURG
Not
Reportable
Case
no: JR 2563/10
AMCU obo ML MAHOMANE
Applicant
And
THE
COMMISSION FOR CONCILIATION MEDIATION AND
ARBITRATION
COMMISSIONER
S RAPHELA N.O.
BHP
BILLITON – MIDDELBURG MINES SERVICES (PTY)
LTD
First
Respondent
Second
Respondent
Third Respondent
Heard
on: 8 February 2017
Delivered:
13 February 2017
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the second respondent. The award was issued 16
August 2010.
In his award, the arbitrator upheld the applicant’s dismissal
by the third respondent on 2 May 2010.
[2]
The present application was filed on 4 October 2010. Nothing
transpired until the filing of a supplementary affidavit on 19
October 2015, the same day that the record was filed. The delay in
filing the record and the supplementary affidavit is some 4
½
years, given that the period of 60 days prescribed by the current
practice directive (not in force the time) is a measure
of what
constitutes a reasonable period within which to find a record.
[3]
The explanation for the delay is one that concerns the applicant’s
previous attorney of record. The applicant states that
in 2014, it
terminated the services of its previous attorney of record. When the
files were handed to the new attorney of record,
there were numerous
and ongoing matters that required priority and it was only during
June 2015 that the union was able to reach
the individual applicant
to obtain an instruction from him. The applicant states that he had
been under the belief and understanding
that the matter had been
referred to the union’s legal representative and that the legal
representative was dealing with
the matter accordingly. After
receiving instructions, it took approximately one month to secure the
recording of the proceedings,
four weeks to transcribe the record.
Further delays were experienced at the court, because the file had
been archived. The applicant
submits that the delay in prosecuting
the matter was the result of a number of ‘unforeseen
circumstances’ and that
the late filing of the record and
supplementary affidavit should be condoned.
[4]
The relevant legal principles are clear. The court must exercise a
discretion, taking into account factors that include the
period of
the delay, the explanation for the delay and the applicant’s
prospects of success. This approach has been tempered
by the rule
that in the absence of an acceptable explanation for an excessive
delay, the applicant’s prospects of success
are not relevant.
[5]
In the present instance, the delay in filing the record and
supplementary affidavit is excessive. A period of delay in excess
of
four years in itself militates against the granting of condonation.
The third respondent has a right to certainty and to expect,
where
the relevant statute prescribes that a review application ought to be
filed within six weeks, to assume that the arbitration
award will not
be subject to challenge and to arrange its affairs accordingly.
[6]
The explanation for the delay is unsatisfactory. Where a party seeks
to apportion blame to a representative for failing to prosecute
the
matter was due diligence, the party concerned must demonstrate
an interest in the proceedings and take active steps to
ensure that
the required attention is given to the matter. There is no
explanation, throughout the period of more than four years
that this
matter lay dormant, of any interest by the applicant in the
proceedings or any enquiry by him directed to the union or
any other
party as to what progress had been made in prosecuting the review. In
the absence of a reasonable explanation for an
inordinate delay, the
application for condonation stands to be dismissed.
[6]
There is a further policy-related consideration to take into account.
The practice manual makes clear that review applications
are to be
treated as urgent applications. This court has been reproached on a
number of occasions on account of what have been
described as
systemic delays in the adjudication particularly of review
applications. The Constitutional Court has observed more
than once
that this court has at its disposal the necessary tools to ensure
that there is compliance with the Rules and practice
directives, and
that the court should advance and uphold the statutory imperative of
expeditious dispute resolution. To grant condonation
in the present
circumstances would frustrate this key statutory objective.
For
the above reasons, make the following order:
1.
The application for
condonation is dismissed.
2.
The review application
is dismissed.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT