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[2017] ZALCJHB 189
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Hygienik (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1218/2015) [2017] ZALCJHB 189 (23 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
no
JR 1218/2015
In the matter between:
HYGIENIK
(PTY) LTD
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
LERATO
THANDY MADIA
N.O
Second
Respondent
CHIMANO
JONAS LEGODI
Third Respondent
Heard:
01 November 2016
Judgment:
04 November 2016
Edited:
23 February 2017
EX-TEMPORE
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the second respondent on 16 February 2016. The
review
application was filed late and the application seeks condonation for
the late filing of the review.
[2]
The factors that the court must necessary take into account are
well-established. They include the degree of lateness, the
explanation for the delay, the prospects of success and the
importance of the case to the parties. In the present matter
the degree of lateness is not insignificant, the application was
filed 82 days late.
[3]
The explanation for the delay is one that concerns the employers’
organization that acted for the applicant and delays
occasioned
within that organization on account of problems with service
providers. These had the consequence that the arbitration
award
issued by the second respondent found its way into the junk e-mail
folder and did not come to the attention of the relevant
parties. The
deponent to the founding affidavit records that the award first came
to the attention of a Mr Theron of the employer’s
organization
on 7 April 2015. He conducted an investigation.
[4]
The matter was further complicated by a Ms Elsa van Zyl, an office
assistant, who had been given instructions to draft the review
application. It would seem that she was new in the office and did not
understand what was required of her. The matter was
never
followed up and Mr Theron says that he was under the
bona fide
belief that the application had been finalized and lodged.
[5]
In May 2015 it came to Theron’s attention that the review
application had not even been drafted. He made arrangements
to
meet with the third respondent to ascertain whether the matter could
be resolved amicably. By 18 May 2015 it became clear to
him that an
amicable settlement was not possible and the matter would need to
proceed to court.
[6]
On or about 3 June 2015, Theron was advised by another representative
of the employers’ organization to seek the assistance
of an
attorney to launch the present application. A consultation was held
more than a week later, on 12
June 2015. There was a
further consultation, when documents were provided for the purposes
of the preparation of the application
and a further consultation was
held on 19
June 2015. The papers were provided by
the attorney to Theron on the evening of 22
June 2015.
[7]
That notwithstanding, the present application was filed only on 6
July 2015.
[8]
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.
[9]
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.
[10]
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.’
[11]
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.
[12]
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.
[13]
When I perused these papers prior to the hearing of this application,
I recalled having dealt with a similar set of facts and
was able to
find the judgment that was the subject of my recollection. It
was a matter between
NBS Transport v CCMA
(JR1208/2015), an
application argued on 23 August 2016 and in which I gave judgment on
26
August 2016.
[14]
What is striking is that the explanation provided for a delay in that
matter is precisely the same explanation provided in
the present
application. In that application, I refused to condone the late
filing of the review given that the explanation was
thin and that the
prospects of success were poor.
[15]
In this matter I do not intend to come to different conclusion.
The application is significantly late, 82 days is not
insignificant
given the six-week time limit established by section 145 and given
the statutory imperative of expeditious dispute
resolution.
[16]
The explanation for the delay is unsatisfactory. One would expect an
official of an employers’ organization to be acutely
aware of
time limits that apply in review applications. On Theron’s
own version, the arbitration award came to his
attention on 7
April 2015. He must have known by that date that the
application was already out of time.
[17]
Even after the attorney of record had been consulted there were
delays in ensuring that this application was served and filed.
Frankly this matter was conducted as if the time limit in Section 145
did not exist, or was one that placed a merely inconvenient
obstacle
in the path of the applicant.
[18]
The law is quite clear, where there is a significant delay and the
explanation for the delay is poor, the applicant’s
prospects of
success are irrelevant. This principle was recently reaffirmed by the
Labour Appeal Court in
[19]
In my view, the applicant has failed to make out a case for
condonation and the application therefore stands to be refused.
I
make the following order.
The
condonation for the late filing of the application for review is
refused.
There
is no order as to costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT