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[2017] ZALCJHB 170
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POPCRU obo Gaeratane v Bobbejaan NO and Others (JS444/14) [2017] ZALCJHB 170 (14 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not Reportable
Case no: JR 444/14
POPCRU
obo PGG
GAERATANE
Applicant
and
DAVID
BOBBEJAAN
N.O. First
Respondent
SAFETY
& SECURITY SECTORAL BARGAINING COUNCL Second
Respondent
SOUTH
AFRICAN POLICE
SERVICES Third
Respondent
MINISTER
OF
POLICE Fourth
Respondent
Heard
on: 09 February 2017
Delivered:
14 February 2017
JUDGMENT
VAN NIEKERK J
[1]
This is an application to review and set
aside an arbitration award issued by the first respondent, to whom I
shall refer as ‘the
arbitrator’. In his award, the
arbitrator upheld the dismissal of the applicant for misconduct.
[2]
The arbitration award is dated 12 June
2013. The applicant states that he received the award only on 6
December 2013. That may be
so, but it is not disputed that the award
was furnished to the applicant’s representatives on 12 June
2013. There is no explanation
as to why the applicant himself
received the award only some six months later. Strictly, the review
application ought to have been
filed by 24 July 2013. On this basis,
the application for review is some nine months late. In any event,
even if the applicant
had been furnished with the award on 6 December
2013 as he contends, the review application ought to have been filed
by no later
than 27 January 2014, in which event the application is
12 weeks late and not nine weeks as averred by the applicant. Either
way,
given the time limit prescribed by s 145, the delay is
excessive.
[3]
The explanation for the delay is terse. The
applicant states that on receipt of the award, the requested his
union representative
to file an application for review. On account of
what described as administrative delays, the union delayed the
instruction of
attorneys to proceed with the application. The
attorneys managed to contact the applicant only on 10 April 2014 and
a consultation
was scheduled for 12 April 2014. The applicant states
that the founding affidavit was drafted on 14 April 2014 and the
application
was filed ‘immediately thereafter’. I this is
not entirely accurate – the founding affidavit was commissioned
only on 22 April 2014 in the papers served on 25 April.
[4]
The applicable legal principles are clear.
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);
Derrick Grootboom v National
Prosecuting Authority & another
[2013] ZACC 37]).
A party seeking condonation must make out a case
for the indulgence sought and bears the onus to satisfy the court
that condonation
should be granted. This court is required to
exercise a discretion, having regard to the extent of the delay, the
explanation proffered
for that delay, the applicant’s prospects
of success, and the relative prejudice to the parties that would be
occasioned
by the application being granted or refused.
[5]
That formulation, which has its roots in
Melane v Santam Insurance Co Ltd
1962
(4) SA 531
(A), has long been qualified in this Court by the rule
that where there is an inordinate delay that is not satisfactorily
explained,
the applicant’s prospects of success are immaterial.
In
National Union of Mineworkers v
Council for Mineral Technology
[1999] 3
BLLR 209
(LAC) 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]
This principle was recently reaffirmed in
Collett v Commission for Conciliation,
Mediation and Arbitration
[2014] 6 BLLR
523
(LAC), a unanimous judgement of the LAC, Musi AJA held as
follows:
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 para 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 532C-D
…
There
is a further principle which is applied and that is 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 delay, an application
for
condonation should be refused.’
[7]
When an applicant seeks to ascribe blame
for a delay on the part of a legal or other representative, the
courts have made clear
that the applicant may not rest content in the
knowledge that the representative concerned has been furnished with
instructions
– it is incumbent on the applicant to follow up
and ensure that those instructions are being executed. There is a
limit beyond
which a litigant cannot escape the consequences of an
attorneys lack of diligence (see
Salojee
and another NNP v Minister of Community Development
1965
(2) SA 135
(A)). An applicant in these circumstances must
satisfy the court that none of the delay is to be imputed to him or
herself.
[8]
There is a further consideration that must
necessarily be taken into account, consequent on the publication of
this Court’s
practice manual and recent amendments to the LRA.
In the recent decision by Myburgh AJ in
Makuse
v CCMA & others
(JR 2795/11,
unreported, 18 August 2015), the court alluded to measures recently
instituted to address systemic delays, particularly
in review
applications. The practice manual, introduced in April 2013, records
that a review application is ‘by its very
nature an urgent
application’. The practice manual also requires that all of the
necessary papers in any review application
be filed within 12 months
of the date of the launch of the application. Although in the present
instance the practice manual was
not in force at the relevant time,
the classification of the review application is one that necessarily
requires its prosecution
with diligence and urgency remains apposite.
As the court observed, the corrective steps taken by this court and
the legislature
(in the form of the 2014 amendments to the LRA) the
statutory imperative that labour disputes must be effectively and
thus expeditiously
resolved. What this requires is a strict scrutiny
of condonation applications and an approach that affords due regard
to the statutory
purpose of expeditious dispute resolution.
[9]
In my view, the explanation for the delay
in this matter is inadequate. In particular, there is no evidence by
the applicant that
he took any steps to ensure that his
representatives were prosecuting the review application with due
diligence. There is no acceptable
explanation for the delay in the
request for legal assistance addressed to the union and the
instructions given to the attorneys.
That delay in itself is in
excess of the time limit within which the application ought to have
been filed. There is no explanation
as to what administrative delays
in particular prevented union officials from prosecuting the review
timeously. Further, there
is no explanation for the delay in sieving
and filing the application, given that by that stage, all of the
applicant’s representatives
must have been aware that the
application was already significantly out of time. In the absence of
a reasonable explanation for
in excess of delay, does not necessary
for me to consider the applicant’s prospects of success in the
review application.
Even if these were relevant, the grounds for
review articulated in the founding affidavit do not serve to make out
a case that
meets the required threshold. This court is entitled to
intervene if and only if the decision to which the arbitrator comes
(i.e.
the outcome of the proceedings under review) falls outside of a
band of decisions to which reasonable decision-makers could come
on
the available material. This threshold serves to preserve the
distinction between appeals and reviews and to limit intervention
by
this court, as the LAC has observed more than once, to exceptional
cases. It is not enough for the applicant to believe that
the
arbitrator’s decision was wrong, nor is it sufficient, as the
applicant appears to contend, that the arbitrator is in
considering
the record of the disciplinary proceedings initiated against the
applicant as opposed to the evidence that was led
before him. It is
incumbent on the applicant establish that notwithstanding the
misdirection upon which it relies, the outcome
of the proceedings
failed to meet the reasonableness threshold referred to above.
[10]
Given the broad discretion conferred on
this court by s 162 of the LRA, and having regard to the collective
bargaining relationship
that exists between the parties, in my view,
the requirements of the law and fairness are best served by each body
bearing its
own costs.
[11]
In the premises 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 Lekota, CHSM Inc Attorneys
THIRD
RESPONDENT: Advocate L Gcabashe SC, Office of the State Attorney