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[2017] ZALCJHB 232
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Tirisano Transport & Services Workers' Union obo Mnchunu and Others v Keuhne & Nagel (Pty) Ltd (JS944/2016) [2017] ZALCJHB 232 (21 April 2017)
IN THE LABOUR COURT OF SOUTH
AFRICA
HELD
AT JOHANNESBURG
CASE
NO
: JS944/2016
DATE:
2017-04-21
[1]
In the matter between
TIRISANO TRANSPORT & SERVICES
WORKERS’ UNION Applicant
obo Mnchunu & 12 others
and
KEUHNE
& NAGEL (PTY)
LTD Respondent
JUDGMENT
STEENKAMP, J:
The
applicant, Tirisano Transport & Services Workers’ Union,
Union referred a dispute to this court on 5 December 2016.
The
Union had referred the dispute to the CCMA, conciliation failed and a
certificate of non-resolution was issued on the 8
th
of August 2016 reflecting that fact.
The
dispute had to be referred to this court within 90 days in terms of
Section 191(11) of the LRA. The Union only referred
it on the
6
th
of
December 2016. The respondent through its attorneys, Shepstone
and Wiley, delivered a statement of defence within the
prescribed
time period on the 20
th
of December.
In
that statement it raised a point
in
limine
that the referral was out of
time.
Despite
the fact that the respondent pointed out to the Union and its
attorneys that the statement was delivered out of time and
that it
necessitated an application for condonation, the Union’s
attorneys only delivered the application for condonation
on the 6
th
of January 2017, a month after it had delivered its statement of
claim.
I
will return to the application for condonation itself in a moment.
I will first deal with the second point
in
limine
which was raised by the
respondent, and that is that the statement of claim did not set out
the details of the individual applicants
in sufficient detail.
It is indeed so that the statement of claim refers to the applicants
as “the Union on behalf
of Mnchunu and 12 others” without
attaching any list of applicants. That is not addressed in the
application for condonation
either.
The
deponent to the founding affidavit, who is the attorney, Charlie
Higgs, simply reiterates that the applicant, i.e. the Union,
has an
excellent explanation for the delay. He refers to the reasons
therefor and he simply refers back to the statement
of claim when
dealing with the identity of the applicants.
In
his argument today, Mr
Higgs
referred to the statement of claim which contains as it must in terms
of Clause 6 a list of books and documents and that list refers
on the
last page of the statement of claim to a “list of applicants”
without setting out who those applicants are.
As
Ms
Ngwenya
,
for the respondent, pointed out, there is on the face of it a
discrepancy in that the Union now purports to act on behalf of 13
of
its members whereas the certificate of outcome dated the 8
th
of August 2016 refers to the Union on behalf of 14 applicants.
It is therefore not clear to the respondent who those applicants
are
on whose behalf the Union purports to act.
Of
course the LRA itself allows a trade union to act on behalf of its
members. That is dealt with in Section 200(1)(b) which states
that,
“…
a
registered trade union ... may act in any one or more of the
following capacities in any dispute in which any of its members is
a
party -- ...
b) on behalf of any of its members –
“
In
Dunn v Hernic Exploration (Pty)
Ltd
[2001] 2 BLLR 209
(LC) a similar situation occurred where a
trade union, the NUM, purported to act on behalf of certain of its
members who had been
dismissed but who were not cited or listed. The
Labour Court, following the earlier judgment of
Librapac CC v
Moletsane NO
(1998) 19
ILJ
1159 (LC), found that in terms
of section 200(2) a registered trade union may only be a party to
proceedings if one or more of
its members are party thereto. What was
required of the applicant union, Francis AJ (as he then was) held,
was
“…
a
clear schedule containing each person’s full names, his/her
address and the signature to record that person’s wish
to be a
party to the steps being taken.”
However, the
Hernic
decision
was overruled on appeal in
NUM v Hernic Exploration (Pty) Ltd
[2003] 4 BLLR 319
(LAC) where Zondo JP, as he then was, pointed out
that section 200(2) does not contain the word “only” and
is permissive
rather than prohibitory, since the dispute was between
the members of the union and the respondent. He held that the union
was
entitled to act in any one or more of the three capacities
provided for in section 200(1). He held that the fact that the union
did not furnish the names of the affected employees did not affect
the jurisdiction either of the CCMA or the Labour Court, even
though
the best practise is for the union to give the names of the employees
so that the employer knows which employees the proceedings
relate to.
I
agree that this court is not deprived of jurisdiction to hear the
matter because of the failure to set out the details of the
individual applicants, given that the Union acts on their behalf.
I also agree with Ms
Ngwenya
that, should the Union be successful in its application for
condonation, the failure to cite the individual applicants should not
be a bar to them proceeding, but that it should be given an
opportunity to provide such a schedule within a certain time. I also
agree with Mr
Higgs
that it would be practicable to do that at or before a pre-trial
meeting and at least to record it in a pre-trial minute that is
yet
to be filed. That then brings me to the main point
in
limine
which is that of the application
for condonation.
Mr
Higgs
concedes in his oral argument today for the first time that the
application is indeed out of time. Although he says in his heads
of
argument that it is 21 days out of time, that is not so. It is in
fact 29 days out of time, i.e. just short of a month.
I will
deal with the application in terms of the well-known judgment in
Melane v Santam Insurance Company Ltd
1962 (4) SA 531
(A) 538 C to E.
The
extent of the delay, as I have said, is some 29 days already outside
of the generous period of 90 days allowed by section 191
of the Act.
In his explanation for the delay Mr
Higg
s
states the following,
“
The
respondent avers, which averment the applicant denies, that the
applicant’s statement of claim is filed outside the prescribed
time limits. According to the respondent the statement of claim
should have been filed on or before the 7
th
of November 2016. The applicant submits that an application in terms
of section 191(11)(a) of the LRA must be made to this Honourable
Court within 90 days from the date on which the CCMA has determined
that the dispute remains unresolved. …
“
The
applicant submits that when on is required to calculate a time period
in days … Saturdays, Sundays and public holidays
are not
accounted for.”
In
his oral argument today, Mr
Higgs
quite properly conceded that that submission is wrong in law.
He did so after Ms
Ngwenya
referred him to the case of
Latiff v
Donro
, a case that Ms
Ngwenya
said is unreported, but is in fact reported and dealt with in at
least one commentary. The case is
Latiff
v Donro (Pty) Ltd
[2004] 11 BLLR 1151
(LC). It is dealt with in
Labour
Law through the Cases
[Du Toit et al]
of which I have the outdated issue 27 of October 2015 to hand.
[The latest issue in this loose leaf is in
fact April 2017]. But be
that as it may, the authors deal with section 191(11) in terms at
page LRA 8-100 of issue 27.
Interestingly, when dealing with
section 191(11), it also refers to the case on which Mr
Higgs
relied in his argument with regard to the identity of the
applicants. That is
NUM v Hernic Exploration
[2001] 2
BLLR 209
(LC) confirmed on appeal at [2003] 4 BLLR (LAC). In
that case the court noted that s 191(11)(a) is peremptory and
prevented
an employee from referring a dispute to the Labour Court
for adjudication before the CCMA or a Council had issued a
certificate
of non-resolution. The court said that it
“…
derives
its jurisdiction in disputes of this nature only from the referral of
a dispute for conciliation on time and a referral
to this court for
adjudication within 90 days from the date when the certificate of
non- resolution has been issued.”
The calculation of those days has
throughout the history of this Court been on the basis as set out in
the Interpretation Act and
not in Rule 1. The issue was dealt
with in terms as far ago as 2004 in
Latiff v Donro
and that is
dealt with on the same page at LRA 8-100.
The
learned authors in
Labour Law through
the Cases
also deal with it at page
LC-2 under the definition of the word “day” when dealing
with Rule 1. They say the following:
“
The Act
contains no definition of “day”. In
Latiff
v Donro
the court agreed with Landman &
Van Niekerk
Practice in the Labour
Courts
that Rule 1 applies to the rules
and not to the LRA. The converse however is not true. If
an expression in the rules
is defined in the LRA it must bear the
same meaning for purposes of the rules. In order to interpret
the term ’90 days’
in section 191(11)(a) of the LRA,
therefore, the definition “day” in section 4 of the
Interpretation Act was preferred
over that in the rules.”
The definition has therefore been
dealt with in terms by Landman and Van Niekerk, a Judge of this Court
and of the Labour Appeal
Court respectively, in their commentary that
is dated if I recall correctly around 2003, again in
Latiff v
Donro
in 2004, and again in
Labour Law through the Cases
in each edition of the loose leaf publication dating from, if memory
serves, 2003 until today, 143 years later, and that situation
has not
been changed either by an amendment to the Act or the rules or by any
higher court.
The
explanation offered in the founding affidavit which simply denies the
correctness of that calculation, therefore, is -- as Ms
Ngwenya
submitted -- no explanation at all. Although Mr
Higgs
today in his oral argument fell on his
sword and conceded that his advice to his client was wrong, Ms
Ngwenya
correctly pointed out that that is not foreshadowed by the
application itself. And in any event, as was held in
Saloojee
’s
case and a number of cases subsequently, there is a limit beyond
which a litigant cannot escape the negligence of its attorney.
The explanation is not sufficient. I will nevertheless deal
with the prospects of success as well as the issue of prejudice.
As
far as prospects of success are concerned, the Union takes issue with
the selection criteria used by the company when deciding
who should
be dismissed for operational requirements. It appears from the
papers before me that at least seven consultation
meetings were held
between February and May 2016. The company through its legal
counsel, Mr Louis Velaphi Mthembu, says in
its opposing affidavit
that during the consultation process,
“
It became
apparent that those employees who were affected by the process and
who were members of the Union ... were not, to their
own detriment,
prepared to participate in the recruitment process.”
The Union did not deliver a replying
affidavit. On the principles set out in
Plascon Evans Paints
Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) I am
constrained to accept the version of the respondent, difficult as it
may be to properly ascertain the prospects of success
on affidavit in
cases such as this where there are numerous disputes of fact. On the
evidence before me I must accept that the
Union did not participate
in the process and that on that basis it has poor prospects of
success in the main referral.
Although the Union and its members
will be prejudiced if they are barred from proceeding with this
matter by way of oral evidence,
I agree with Ms
Ngwenya
that it is in the interest of finality that condonation be refused.
The Union is to some extent the author of its own misfortune
and the
matter has already been delayed for at least four months through its
inaction and the inaction of its attorneys.
There is simply no
explanation for the four months during which it did not refer its
dispute to this Court. Even given that
the Union acted on the
wrong advice, there is also, as Ms
Ngwenya
pointed out, no
explanation why there was no action taken even during the first 90
days after the CCMA issued the certificate of
none resolution.
For all these reasons the application for condonation must fail.
That
leaves the issue of costs. Ms
Ngwenya
submitted that cost should follow the result. That was also the
prayer of the Union in its application for condonation. Ms
Ngwenya
submitted that this should be the case especially in circumstances
where the company through its attorneys had raised the two points
in
limine
on at least three occasions and
despite that, it is only today that the Union’s attorneys
accepted that it had proceeded
on the wrong legal basis and that
therefore it was in the first place required of it to apply for
condonation -- something that
it only did the month after its belated
filing of its statement of claim.
In
all of these circumstances the application for condonation for the
late filing of the applicant’s statement of claim is
dismissed
with costs.
-------------------------
STEENKAMP J
APPEARANCES
APPLICANT
: C Higgs (attorney).
RESPONDENT:
Zinhle Ngwenya
Instructed
by: Ms S Leyden of Shepstone & Wylie.
[1]
This
ex
tempore
judgment was handed down on 21 April 2017. The transcript and file
were only given to me for signature on 12 June 2017.