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[2017] ZALCJHB 180
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Moloto v Commission for Conciliation, Mediation and Arbitration and Others (JR2755/15) [2017] ZALCJHB 180 (14 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Reportable/Not Reportable
Case
no: JR 2755/15
MATLOU
SAUL MOLOTO
Applicant
And
COMMISSION FOR CONCILIATION,
MEDIATION &
ARBITRATION
TREVOR WILKES N.O.
RAND
WATER
First
Respondent
Second Respondent
Third
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 second respondent. In his award, the second respondent
upheld the
dismissal of the applicant by the third respondent.
[2]
The arbitration
award is dated 3 March 2014. The applicant states that he received
the award on or about 17 March 2014. In terms
of the time limit
established by s 145 of the LRA, the application for review ought to
have been filed within six weeks, i.e. on
or before 7 April 2014. The
review application was filed only on 12 January 2015, some 10 months
late.
[3]
The explanation for
the late filing of the review application is in essence one that
relates to a union official, whom the applicant
believed was
attending to the review. The applicant states that he was advised
that the process would take approximately 18 months
to be finalised
and that it was only in November 2014 that he went to the union
officers to enquire back progress. He could not
find the official
concerned and during December 2014, the applicant met with the unions
hurting provincial deputy secretary who
appointed the applicant’s
current attorneys of record. A consultation was held on 11 December
2014 where it became apparent
that the union official had done
nothing to prosecute the review other than to apply for a case
number. In late December 2014,
the attorney said read all of the
documents used in the arbitration hearing and drafted a founding
affidavit.
[4]
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.
[5] 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.
[6] it is not in dispute that the
applicant was a shop steward. It is reasonable to assume therefore
that he was aware of the applicable
time limit and the importance of
following up on instructions given to union officials. For the period
7 April 2014 to the end
of November 2014, there is no evidence of any
follow-up by the applicant. The explanation, insofar as it seeks to
attribute blame
to union officials, is not supported by any
confirmatory affidavits. In my view, the explanation for the delay is
not satisfactory.
Given an unsatisfactory explanation for an
excessive delay, the applicant’s prospects of success are not
relevant.
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 N Thagwana, Madlela Gwebu Mashamba Inc.
THIRD
RESPONDENT: Mr O Molatudi, Hogan Lovells