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[2017] ZALCJHB 193
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POPCRU obo Palm v Van Aarde NO and Others (JR482/14) [2017] ZALCJHB 193 (13 March 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no.: JR 482/14
In
the matter between:
POPCRU
obo A C PALM
Applicant
And
M
C VAN AARDE
N.O
First Respondent
THE
SAFETY & SECURITY SECTORAL
BARGAINING
COUNCIL
Second
Respondent
SOUTH
AFRICAN POLICE
SERVICES
Third Respondent
MINISTER
OF
POLICE
Fourth Respondent
Heard:
9 February 2017
Judgment:
9 February 2017
Edited:
13 March 2017
EX-TEMPORE
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an
award made by the first respondent on 19 April 2012. The applicants
say that they
received the award on 20
April 2012. The present application
was filed on 1 September 2014. The application is out of time. It
exceeds the time limit established
by section 145 of the Labour
Relations Act by some two years and two months.
[2]
The reasons for the lateness are recorded in paragraph 21 of the
founding affidavit. In essence, the applicants say that on
receipt of
the award, their representative advised them of the findings, the
need to take the matter on review and the reasons
why this should be
done. On 22 May 2013 a letter was sent to the union’s legal
representative requesting a mandate to proceed
with the review
application. There were administrative delays within the union and
these resulted in instructions being sent to
the applicants’
attorneys only on 28 February 2014.
[3]
The attorneys state that they unsuccessfully endeavoured to contact
the applicants and only managed to get hold of one of them
on 28
March 2014. Consultations were then conducted telephonically.
The union reverted to the applicants’ attorneys on 25
July
2014, instructing them to review the matter. The review application
was thereafter drafted and, as I have indicated, was filed
in this
court on 1
September 2014.
[4]
In regard to the prospects of success; the applicants contend that
they have strong prospects of success in the matter. They
set out
their submissions in this regard in paragraph 22 of the award.
[5]
The legal principles that are applicable are well established. They
require the court to exercise a discretion; a discretion
that must be
exercised judicially having regard, amongst other things, to the
period of the delay, the reason for the explanation
and the
applicants’ prospects of success. That rule has been tempered
by the Labour Appeal Court on at least two occasions
where that court
has said that where a delay is excessive and the reason or the
explanation for the delay is unsatisfactory, the
applicants’
prospects of success are irrelevant. Applying these principles to the
present matter; there can be no question
that the delay in this
matter is inordinate, given that the statute requires a review to be
filed within six weeks. A delay of
two years and two months is way
beyond the stipulated time limit.
[6]
Insofar as the reasons for the delay are concerned; given the degree
of lateness, these must necessarily be compelling for this
court to
grant any application for condonation. In my view, the explanation is
less than compelling. In fact, it is unsatisfactory.
The award was
received, as I have indicated, on 20 April 2012. It is only on 22
May 2013 that a mandate is requested to appoint a legal
representative to proceed with the review. The internal delays within
the
union resulted in the attorneys being instructed only on 28
February 2014.
[7]
This court has held that where a trade union represents a member in
proceedings in this court, it is incumbent on the union
to act with
the same degree of diligence as a legal representative. Officials of
employers’ organisations and trade unions
are held at the same
standards of conduct as legal representatives.
[8]
In the present matter it is not enough simply to state broadly that
the delay was the result of an administrative issue within
the union.
The nature of the administrative delay is simply not described and it
is proffered as a broad and general explanation
which is intended to
cover a period of some almost two years. It is incumbent on an
applicant in a condonation application to explain
the full period of
the delay. This the applicants have failed to do. There is no
explanation to what transpired between 25 July
2014, when the review
application was to proceed and 1
September 2014 when this
application was filed.
[9]
It must have been obvious to the legal representatives and the
parties involved at that time that the matter was already way
out of
time; and that it was necessary to file the application with the
utmost degree of urgency. That was not done. It seems to
me that the
parties proceeded at their leisure, as they had done, since receipt
of the award; and that the application was filed
at what appears to
be their convenience.
[10]
There is a further consideration to take into account. The
Constitutional Court and the Supreme Court of Appeal have reproached
this court on more than one occasion for what would be referred to as
‘systemic delays’ in the determination or adjudication
of
disputes before this court. Particular reference has been made to
review applications. This court has responded in the form
of the
practice manual which requires parties to file the record within 60
days of date of receipt by the registrar of the record
and to
complete a review application within a period of 12 months. In
addition, a recent amendment in the Labour Relations Act
acknowledges
the same problem; requiring parties to complete proceedings at least
to the point of applying for a court date within
six months of filing
a review application. To grant condonation in these circumstances
where the application is out of time, in
excess of two years, would
frustrate the statutory purpose that underlies the amendment to the
Labour Relations Act and the efforts
by this court to ensure that
review applications are brought timeously and dealt with
expeditiously.
[11]
For those reasons, given the inordinate delay and the failure to
explain the delay satisfactorily, it is not necessary for
me to
consider the applicants’ prospects of success. And for those
reasons, in my view, the application for condonation stands
to be
refused.
[12]
In relation to costs; in my view, there is no reason why costs ought
not to be awarded. The costs of the opposition to this
application on
the part of the fourth respondent are ultimately underwritten by the
tax payer. I see no reason why the tax payer
should be burdened
effectively with the costs of this matter, given the failure by the
applicants to prosecute the review with
the required degree of
diligence.
[12]
Finally, this court continues to be in receipt of applications,
particularly applications for review where the applications
are filed
way out of the statutory time limit of six weeks. Parties ought to be
aware that this court, for the reasons I have outlined,
takes a
strict approach to the application of the applicable legislation and
the practice manual and will require compelling reasons
for any
application for condonation for a failure to comply with the time
limit; be that in relation to the filing of the review
or the filing
of the record or otherwise. Applicants and attorneys who represent
parties and who continue to file applications
such as the present,
where a matter is so hopelessly out of time, this court will in
future consider granting cost orders on a
de bonis propriis
basis in order to discourage what is litigation that serves only to
place a continuous strain on the resources of this court. Be
that as
it may, the cost order I intend to make in the present instance a
cost order on the ordinary scale.
For
those reasons I make the following order:
1. Condonation for the late filing of
the review application is refused.
2. The review
application is dismissed with costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT