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[2017] ZALCJHB 185
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South African Municipal Workers' Union obo Seichoko and Others v SALGC and Others (JS2345/14) [2017] ZALCJHB 185 (13 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not
Reportable
Case
no: JS 2345/14
SOUTH
AFRICAN MUNICIPAL WORKERS’ UNION
obo SEICHOKO & OTHERS
Applicant
and
SALGC
PJ
GREYLING N.O
NALEDI LOCAL MUNICIPALITY
First
Respondent
Second
Respondent
Third
Respondent
Heard
on: 9 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 on 2 June 2014. In his award,
the
second respondent concluded that the third respondent had not
committed an unfair labour practice in relation to the promotion
of a
Mr Groep and by failing to appoint to the individual applicants to
the same level.
[2]
The applicant received the arbitration award on 2 July 2014. The
papers in the present application was served only on 1 December
2014.
In terms of the applicable time limit, the application ought to have
been served by no later than 19 August 2014. The application
was
therefore served some three months late.
[3]
The explanation for the delay is one that concerns a late request to
the applicant’s attorneys to deal with the review
application,
and the inability of the attorneys to deal with the matter
expeditiously. In particular, the attorneys were instructed
during
the last week of August 2014. By this time, the statutory time limit
had already expired. Consultation took place only on
30 September
2014, whereafter the preparation papers commenced. A further
consultation to place on 1 October 2014, apparently for
the purposes
of drafting the supplementary affidavit.
[4]
The delay, although not inordinate, is excessive. In my view, the
explanation for the delay is poor. The applicant fails to
explain why
the attorneys were instructed as late as they were. At that stage,
all concerned must have been aware that any application
for review
was already out of time. Yet, it took from the end of August to the
beginning of December to file the application. The
explanation which
is proffered relates in essence to the attorney’s commitments
to attend to other matters during August
and September and other
urgent matters during October. The explanation is vague and does not
account for the whole of the period
of delay. I fail to appreciate
why another attorney from the office could not deal with the matter,
given that it was already out
of time. The explanation for the period
from 1 October 2014, where the deponent to the affidavit in support
of the condonation
application states that a consultation was
required to prepare the supplementary affidavit makes no sense. A
supplementary affidavit
is due only once the record has been filed,
after the filing of the founding affidavit.
[5]
The applicable legal principles are clear – in the absence of a
satisfactory explanation for an excessive delay, condonation
stands
to be refused and the applicant’s prospects of success are
irrelevant.
[6]
There is a further consideration to take into account. The practice
manual requires the parties to review application to treat
the matter
as they would in urgent application. An applicant is also required to
complete the filing of all papers within a period
of 12 months after
the filing of the application. In the present matter, the replying
affidavit was filed in May 2016, significantly
more than a year after
the filing of the founding papers. These requirements, and the recent
statutory amendment which require
a party in a review application to
complete the relevant paperwork within a period of six months after
the date of review, are
all directed at the statutory purpose of
expeditious dispute resolution. To grant condonation in the present
circumstances would
frustrate that purpose.
For
the above reasons, I make the following order:
1.
Condonation for the late filing of the
review application is refused.
2.
The application for review is dismissed.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT