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[2017] ZALCJHB 195
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Ntombela v Safety and Security Sector Bargaining Council and Others (JR2221/14) [2017] ZALCJHB 195 (20 March 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no.: JR 2221/14
In
the matter between:
SELLO
MICHAEL NTOMBELA
Applicant
And
SAFETY
AND SECURITY SECTOR
BARGAINING
COUNCIL
First Respondent
JOYCE
NKOPANE
N.O
Second Respondent
SOUTH
AFRICAN POLICE SERVICES
Third Respondent
Heard:
9 February 2017
Judgment:
9 February 2017
Edited:
20 March 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 8 September
2014. The present
application was filed on 19June 2015. That is an
inordinate delay.
[2]
In terms of the relevant principles, the court is required to
consider the period of the delay, the explanation for the delay
and
if relevant, the applicant’s prospects of success. The
prospects of success are not relevant where in circumstances where
an
applicant fails to prove or fails to establish a satisfactory
explanation for an excessive delay. In the present matter, as
I have
indicated, the delay is excessive. An applicant in a matter such as
this is required to file an application within six weeks
of receipt
of the arbitration award. In this case the delay is almost six
months.
[3]
The reasons for the delay are set out in paragraph 6 of the
application for condonation. In essence, the applicant states that
he
had instructed his union, POPCRU, to review the matter on his behalf
and that the union failed to keep him informed as to progress
or the
lack thereof. It was only in June 2015 when the applicant says he
finally became aware that the matter had been abandoned
by the union.
He then appointed an attorney who took steps to ensure that the
matter was filed in court.
[4]
The application itself appears to indicate that the applicant filed
the application on his own behalf in June 2015. What is
lacking from
the explanation is any account of any efforts made by the applicant
to enquire from his union as to what progress
was being made on the
review and to take necessary action in the event of there being no
progress. In other words, the period from
the date of receipt of the
award through to June 2015 is one where the applicant simply seeks to
blame the union for failing to
keep him abreast of the progress and
blames the union for a lack of communication in circumstances where,
as I have indicated,
there is no indication whatsoever as to what
steps the applicant himself took.
[5]
The law is quite clear on this point. Where a party is represented by
a trade union or by an attorney, it is incumbent on the
applicant to
make enquiry on a regular basis as to progress. It is not sufficient
for an applicant simply to instruct a union or
an attorney to file an
application and then sit back for months and fail to make enquiry as
to progress. That is precisely what
happened in the present matter
wherefore almost seven months the applicant appears to have sat on
his hands and failed to make
any proper enquiry as to what progress
his union was making in the application filed on his behalf. For that
reason, and particular
in my view, the explanation proffered by the
applicant for an excessive delay is inadequate and condonation stands
to be refused.
[6]
There is a further matter to which I must necessarily refer; and that
is the nature of review applications. This court has noted
on a
number of occasions that, as provided in the practise manual, review
applications ought to be treated with the same degree
of diligence as
urgent applications. Parties are required to further the interests on
that basis. If they fail to do so, they have
themselves to blame for
a court’s refusal to hear the matter on the basis that the
explanation proffered for a delay is unacceptable.
The
order I make for those brief reasons then is the following:
1. Condonation for the late
filing of the review application is refused.
2. The review application is
dismissed.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT