About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 83
|
|
National Union of Metal Workers of South Africa and Others v Malasela Taihen Electric (Pty) Ltd (JS333/15) [2017] ZALCJHB 83 (8 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JS 333/15
In
the matter between:
NATIONAL
UNION OF METAL
WORKERS
OF SOUTH
AFRICA
First Applicant
TJ
KOBEDI & 2 OTHERS
Second Applicant
S
XABA
Third Applicant
J
RADEBE
Fourth Applicant
and
MALASELA
TAIHEN ELECTRIC (PTY) LTD
Respondent
Heard:
12 August 2016
Delivered:
08 March 2017
JUDGMENT
TLHOTLHALEMAJE
J
[1]
The
applicants seek an order condoning the late service and filing of the
fourth applicant’s application in terms of rule
22 of the Rules
of this Court. They further seek an order joining the fourth
applicant as a party to the proceedings as his right
to relief
depended on the determination of substantially the same question of
facts and/or law. The respondent opposed the application.
[2]
The
relief above is sought against the following background.
2.1
The
individual applicants, except for the fourth applicant (Radebe), were
dismissed from the respondent’s employ on 25 February 2015
on allegations of
inter
alia
,
having participated in an unprotected strike action. An automatically
unfair dismissal dispute was referred to the Metal and Engineering
Industries Bargaining Council (MEIBC) on 6 March 2015, and
a certificate of outcome was issued on 26 March 2015.
2.2
Radebe
was dismissed on 24 March 2015, and National Union Metal Workers of
South Africa (NUMSA) had referred an unfair dismissal
dispute to the
MEIBC on his behalf on about the same date, stating that he was
dismissed for reasons unknown. The MEIBC had on
6 July 2015,
issued a ruling that it lacked jurisdiction to arbitrate the dispute
as Radebe was dismissed for taking
part in industrial action, and
that the dispute ought to be referred to this Court.
2.3
The
applicants’ statement of claim, which did not include Radebe as
one of the individual applicants was filed and served
by NUMSA on or
about 25 May 2015. Condonation was sought in respect of the
statement of defence which had been filed
out of time; and on
11 September 2015 Van Niekerk J granted
condonation. On 5 November 2015, Ruth
Edmonds Attorneys
Inc. came on record, and indicated the applicants’ intention to
amend their statement of case and to join
Dlamini (Sic) in the
proceedings.
2.4
The
amended statement of claim was filed on 7 December 2015.
The respondent’s amended statement of defence followed
promptly
on 23 December 2015, wherein two points
in
limine
were raised, viz, the fact that the referral of the dispute to the
MEIBC, and the certificate of outcome recorded that the dispute
referred pertained to an alleged automatically unfair dismissal,
whereas the dismissals of the individual applicants were pursuant
to
their participation in an unprotected strike action.
2.5
The
second point
in
limine
raised was that Radebe’s referral and joinder to the
proceedings was out of time in view of the fact that the MEIBC
ruled
on 6 July 2015 that it had no jurisdiction, and that it was only on
10 November 2015 that he sought to be joined to the proceedings.
2.6
The
notice of application in terms of rules 22 of the Rules of this Court
to join Radebe was filed and served on 10 November 2015.
No condonation was however sought until 07 March 2016. Radebe
also on 7 March 2016, filed a supplementary affidavit.
The
respondent opposed the application.
[3]
The
principles applicable to applications for condonation are well-known.
The court has a discretion in such applications, to be
exercised
judicially upon a consideration of all the facts, including the
degree of lateness, the explanation therefor, the prospects
of
success, and the importance of the case.
[1]
Other factors to be considered in such applications include the
respondent’s interest in the finality of the matter, the
convenience of the court, and the avoidance of unnecessary delay in
the administration of justice
[2]
.
Ultimately however, the standard for considering an application for
condonation is the interests of justice. Whether it is in
the
interests of justice to grant condonation will depend on the facts
and circumstances of each case.
[3]
[4]
In
the founding affidavit deposed to by Mr Vuyisile Daniel Mpetsheni
(Mr Mpetsheni), a NUMSA official, it was averred that
the
application to join Radebe was some 35 days out of time in view of
the ruling issued by the MEIBC on 6 July 2015. Mr Mpetsheni
attributed the delay to the internal processes of NUMSA, including
that after the MEIBC ruling, the matter was then referred to
the
regional office; that the individual applicants had requested NUMSA
to instruct its attorneys of record in the matter, which
required the
matter having to go through the office of the Deputy General
Secretary’s office on 10 September 2015.
It was only
on 29 September 2015 that it was agreed at a meeting that Radebe
should be joined to the matter and for it to
be referred to
attorneys.
[5]
Mr Mpetsheni
also attributed further delays to officials’ tight schedule,
and only on 27 October 2015 were consultations
held with Ruth
Edmonds, and a final decision to instruct her in the matter and to
join Radebe was taken on 4 September 2015,
followed by
further instructions with the attorneys on 27 October 2015.
[6]
A
period of 35 days is excessive,
albeit
not in the extreme. Be that as it may, it has been held that an
applicant for condonation must give a full and reasonable explanation
for the delay, and that the explanation must cover the entire period
of delay
[4]
. Mr Mphetshini’s
founding affidavit falls short of these requirements, and does not
cover the period of the delay. It merely
referred to dates upon which
certain steps in accordance with NUMSA’s internal workings were
undertaken, including correspondence
by the shop stewards to NUMSA on
31 August 2015 to instruct Ruth Edmonds Attorneys; further
correspondence sent to the
office of the Deputy General Secretary on
10 September 2015; and meetings with Ms Ruth Edmonds on 27
October 2015.
[7]
As
at 5 September 2015 when a meeting was held with the individual
applicants to decide on instructions to Ruth Edmonds Attorneys,
it
would have become apparent to NUMSA that time was of the essence, and
yet the final instruction to instruct attorneys was taken
on 27
October 2015, when the time frames had already elapsed.
[8]
As
correctly pointed out on behalf of the respondent, the purported
explanation is not adequate as it fails to account for each
period of
the delay since 6 July 2015 after the MEIBC had issued its
ruling. Furthermore, an excuse pertaining to the
NUMSA’s
officials hectic schedule can hardly be considered as reasonable.
[9]
Significant
in this case is whether a lack of an adequate explanation can be
compensated by other considerations, it being trite
that factors to
be considered in such cases are indeed interrelated, and further
bearing in mind the interests of justice. It has
been held that where
the delay is unacceptably excessive and there is no explanation for
the delay, there may be no need to consider
the prospects of success.
However, where the period of the delay is not excessive and the
explanation is not satisfactory, but
there are reasonable prospects
of success, condonation should be granted.
[5]
[10]
The
applicants’ main contention was that the dismissals were
challenged on the basis that the respondent had failed to apply
its
rules consistently when dismissing the individual applicants; had
failed to issue ultimatums, and had also refused to afford
them a
hearing prior to dismissing them. It was contended that Radebe
was equally denied the benefit of a hearing prior to
his dismissal.
[11]
I
have taken regard of the respondent’s contentions that the
applicants had no prospects of success in the matter, including
that
Radebe was on a final written warning and had failed to take an
opportunity to submit written reasons as to why he should
not be
dismissed, and further that the individual applicants failed to lodge
an internal appeal.
[12]
Based
on the pleadings and the circumstances that led to the dismissals, I
am not satisfied that it can be said in this case that
the
applicants’ success on the merits are non-existent.
Furthermore, having taken regard of the non-excessive nature of the
delay, it would not serve the interests of justice to deny the
applicants an indulgence. The respondent had contended that it would
suffer prejudice because of the delay which was the applicants’
own making. In my view, however, in the absence of any other
contention, that delay as already indicated is not excessive, and
there can be no basis for a conclusion that the applicants had
abandoned their claim. Furthermore, I am of the view that it is the
applicants who stand to suffer more prejudice if they were
to be
denied the right to ventilate the merits of their case.
[13]
Aligned
to the question of condonation was whether Radebe should be joined to
the proceedings or not. There does not appear to be
much contest in
regards to the circumstances that led to his dismissal, and I am
prepared to accept that they were identical to
those that led to the
dismissal of the other individual applicants. It would therefore make
sense to join him in these proceedings,
as the refusal to do so might
end with potential multiple claims in respect of what appears to be
the same cause of action. It
would not in the circumstances, be in
the interest of either party to have to deal with multiple claims
emanating from the same
set of facts.
[14]
I
have further had regard to the issue of costs, and I am not persuaded
that the circumstances of this case call for any cost order.
Order
[15]
Accordingly, the following order is made:
1.
The
late service and filing of the fourth applicant’s application
in terms of rule 22 of the Rules of this Court is condoned.
2.
The
fourth applicant, Mr J Radebe, is joined as a party to these
proceedings.
3.
The
parties are directed to convene a pre-trial conference within thirty
(30) days from the date of this order, and to file minutes
in that
regard.
4.
There
is no order as to costs.
__________________
E Tlhotlhalemaje
Judge of the Labour Court
of South Africa
APPEARANCES
For
the Applicants:
Mr X Ngako of Ruth Edmonds Attorneys
For
the Respondent:
Ms M Chenia of Cliffe Dekker Hofmeyer Inc
[1]
Melane v Santam
Insurance Co Ltd
1962 (4) SA 531 (A).
[2]
Federated
Employers Fire & General Insurance Co Ltd & Another v
McKenzie
1969 (3) SA 360
(A) at 362F-G).
[3]
Brummer v
Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC) at para 3.
[4]
Van Wyk v
Unitas Hospital and Another
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at para 22.
[5]
Grootboom v
National Prosecuting Authority
2014 (1) BCLR 65
(CC) at para 51.