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[2017] ZALCJHB 161
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Ntsele v Commission for Conciliation, Mediation and Arbitration and Others (JR1459/15) [2017] ZALCJHB 161 (16 May 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR1459/15
In
the matter between:
MANDLENKOSI
DONALD
NTSELE
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
MUSILWA
RAPALANE
N.O.
Second Respondent
CREDIT GUARANTEE
INSURANCE OF
SOUTH AFRICA
LTD
Third Respondent
Heard:
10 May 2017
Delivered:
16 May 2017
JUDGMENT
TLHOTLHALEMAJE
J
Introduction and
background
[1]
This is an opposed application to review and set aside a condonation
ruling issued
by the second respondent (Commissioner) dated 9 July
2015, issued under case number GAJB4056-14. The applicant’s
application
for condonation in respect of a late referral of a
dispute for arbitration was dismissed by the Commissioner.
[2]
The background facts to this dispute to the extent that they are not
seriously disputed are summarised as follows:
a)
On
20 January 2014, the applicant had approached the CCMA with a
referral of an alleged unfair labour practice dispute pertaining
to
the failure by the third respondent (employer) to promote him.
b)
The
matter was set down for a con/arb hearing on 6 March 2014. The
employer had objected to that process, and the dispute was only
conciliated. When conciliation failed, a certificate of outcome was
duly issued.
c)
The
applicant resigned from his position in February 2015 by giving one
month’s notice.
d)
On
20 April 2015, the applicant had then referred the initial unfair
labour practice dispute for arbitration, together with an application
for condonation, which the employer had opposed.
e)
The
matter was set-down for an
in
limine
hearing on 25 June 2015 after being initially postponed on 4 June
2015 at the request of the applicant.
[3]
Having heard the parties, the Commissioner held that the delay in
referring the dispute for arbitration was extremely excessive,
and
that the applicant’s explanation for the delay was
‘unreasonable and unjustifiable’. The Commissioner also
found that since the applicant resigned in February 2015, his
prospects of success on the merits were poor.
[4]
The applicant has since launched this application, to review the
condonation ruling. The matter initially came before Van Niekerk
J on
the pre-enrolment roll on 30 August 2016, and condonation for the
late filing of the record of proceedings, and the late filing
of the
employer’s heads of argument was granted.
The
grounds of review and evaluation
[5] The applicant
attacked the condonation ruling on a variety of grounds, including
that the Commissioner failed to fully apply
the correct legal
principles for determination of condonation applications. He
contended that the Commissioner failed to take account
of other
factors pertinent to a consideration of condonation applications such
as his prospects of success, the issue of prejudice,
the importance
of the matter and the interests of justice. The ruling was also
attacked on the basis that the Commissioner failed
to deal with the
issue of jurisdiction as raised by the employer at the
in limine
hearing, where the latter had alleged that the CCMA lacked
jurisdiction to consider the application on the basis that the
applicant
was no longer an employee when he referred the dispute for
arbitration.
[6]
The employer opposed the review application on the basis that the
alleged unfair labour practice dispute referred to the CCMA
had no
merit as the applicant was not the best candidate for the position
initially advertised and thereafter interviewed for.
It was further
contended that the referral to the CCMA was late by some 321 days;
that the applicant had not fully explained the
delay and that he had
no prospects of success as he had resigned prior to requesting that
the dispute initially referred be arbitrated.
[7]
It was further submitted on behalf of the employer that the grounds
of review as set out by the applicant had no merit, and
did not state
the basis upon which it could be concluded that the Commissioner had
not applied the correct legal principles, as
the applicant had not
fully discussed the delay, the reasons therefore, his prospects of
success and the prejudice to the parties
because of the delay.
The legal framework
and evaluation
[8]
The legal principles pertaining to applications for condonation are
trite. The Court in
Melane
v Santam Insurance Co. Ltd
[1]
identified the factors to be considered in applications for
condonation as follows:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what should
be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects may tend to compensate
for a long delay.
And the Respondent’s interests in finality must not be
overlooked.”
[9]
In this case, the Commissioner commented that the delay was extremely
excessive, and the applicant had correctly also conceded
that this
was the case. The Commissioner further had regard to the reasons for
the delay, which he regarded as central to the decision
regarding
condonation. It is trite that in order to assist an arbitrator in
properly exercising his or her discretion in such matters,
a party
seeking condonation must set out all the facts and circumstances
relating to the delay, and most importantly, must provide
a
satisfactory explanation for each period of the delay. Any period of
delay that is unaccounted for, will result in condonation
being
refused.
[2]
[8]
The applicant’s explanation for the delay as correctly pointed
out by the Commissioner was inadequate. As per the applicant’s
application before the Commissioner, he had merely stated that:
“
Employer
has failed to adhere to the proposal agreed upon as a consequence of
discussions we had and secondly it will have been
pre-mature to refer
the matter without giving the employer an opportunity to rectify the
unfair practice in the absence of job
vacancies.”
[9]
The transcribed record of proceedings further indicate that the
Commissioner afforded the applicant an opportunity to make further
submissions in regard to his application, and by implication, the
reasons for the delay, and the applicant chose not to.
[3]
It is apparent from the reasons proffered by the applicant that they
are lacking in detail, and did not account at all for each
period of
the delay. Even if the applicant had ‘afforded the employer and
opportunity to rectify the unfair practice’
during his period
of employ, there is further no explanation for the delay after his
resignation until the date that he decided
to refer the dispute.
Therefore, the applicant’s explanation amounted to ‘no
explanation at all’
[4]
,
and the Commissioner was correct as deeming it as unreasonable and
unacceptable.
[10]
In regard to prospects of success, the Labour Appeal Court in
NUM
v Council for Mineral Technology
[5]
held that:
“…
.
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.”
[13]
In the light of the excessive delay in referring the dispute, and
further in the light of the unsatisfactory explanation proffered
for
the delay, it would not have been necessary for the Commissioner to
deal with the applicant’s prospects in respect of
the main
claim. The applicant’s contention that the Commissioner
committed an irregularity by failing to consider the merits
of his
claim since the factors for consideration in such applications are
interrelated is misplaced, as this is not always the
case. The
principle that it might not always be necessary to consider other
factors pertinent to applications for condonation as
enunciated in
Moila
was further emphasised by the Constitutional Court in
Grootboom
v National Prosecuting Authority and Another
,
[6]
where Zondo J held that:
“
Although
the existence of the prospects of success in favour of the party
seeking condonation is not decisive, it is an important
factor in
favour of granting condonation.
The
interests of justice must be determined with reference to all
relevant factors. However, some of the factors may justifiably
be
left out of consideration in certain circumstances. For example,
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. If the period of delay is short and there is an
unsatisfactory
explanation but there are reasonable prospects of
success, condonation should be granted. However, despite the presence
of reasonable
prospects of success, condonation may be refused where
the delay is excessive, the explanation is non-existent and granting
condonation
would prejudice the other party. As a general proposition
the various factors are not individually decisive but should all be
taken
into account to arrive at a conclusion as to what is in the
interests of justice.”
[7]
[14]
Even though the Commissioner in this case was not required to
determine the prospects of success in view of the excessive nature
of
the delay and a lack of a satisfactory explanation in that regard, he
had nevertheless done so. The Commissioner considered
that the
applicant had already resigned at the time that the dispute was
referred for arbitration and accordingly his prospects
of success
were poor. He had not considered the merits of the applicant’s
alleged unfair labour practice, and correctly so
in my view.
[15]
To the extent that the issue was whether the applicant was an
employee as at the time that he had referred the alleged unfair
labour practice dispute, that issue pertained to the jurisdiction of
the CCMA, and it is trite that if there is no employment relationship
between the two parties to the dispute, then the CCMA would have no
jurisdiction to determine the matter, and consequently there
could
not have been an unfair labour practice as contemplated by
section 186(2) of the LRA.
[16]
In this case however, irrespective of the jurisdictional point
raised, the issue nevertheless remained whether the main alleged
unfair labour practice dispute was properly before the CCMA. It is
accepted that when the dispute was initially referred for
conciliation
in January 2014, the applicant was still an employee.
The dispute as to whether he was an employee or not at the time that
he had
referred the matter for arbitration could only be considered
after it was determined that the main dispute was properly before the
CCMA, i.e., that it was referred within the time periods stipulated.
To the extent that this was not the case in the light of the
excessive delay and no explanation in that regard, the issue of the
employment relationship became academic in my view.
[17]
The applicant correctly pointed out that ultimately, it is the
considerations of the interest of justice that determines whether
condonation should be granted or not.
[8]
It is however trite that a consideration of the interests of justice
calls for an evaluation of the interest of both parties, and
it
cannot be doubted that inordinate delays in litigation by either
party invariably damages the interest of justice. As pointed
out by
Zondo J in
Grootboom
,
[9]
if it is in the interests of justice that condonation be granted, it
will be granted. If it is not in the interests of justice
to do so,
it will not be granted, taking into account the pertinent factors.
[18]
In this case, and based on the applicant’s own averments as per
his application before the Commissioner, there is no
basis for
reviewing or setting aside the condonation ruling. In essence, the
applicant’s application for condonation had
not established
good cause as to why the late referral ought to have been condoned.
In the light of the factors considered and
conclusions reached in
that regard, the interests of justice,
albeit
not specifically referred to by the Commissioner, dictated that the
application for condonation ought to be dismissed.
[19]
I have had regard to the considerations of law and fairness and the
circumstances of this case, and hold the view that a cost
order is
not warranted.
Order
[20] In the premises, the
following order is made:
1.
The
application to review and set aside the second respondent’s
condonation ruling is dismissed.
2.
There
is no order as to costs
_______________
E. Tlhotlhalemaje
Judge of the Labour Court
of South Africa
APPEARANCES:
For
the Applicant:
In
Person
For
the Third Respondent:
Ms. N Moni of Moni AH Inc.
[1]
1962 (4) SA 531
(A) at 532B-E.
[2]
See
NUMSA
and Another v Hillside Aluminium
[2005] 6 BLLR 601 (LC).
[3]
Page 6 line 13 of
the transcribed record.
[4]
See
Moila
v Shai N.O. and Others
(2007)
28 ILJ 1028 (LAC);
[2007] 5 BLLR 432
(LAC) (
Moila
)
at para 34 where it was held that:
“
I do not
have the slightest hesitation in concluding that this is a case
where the period of delay is excessive and the appellant's
purported
explanation for the delay is no explanation at all. I accept that
the case is very important to the appellant. However,
the weight to
be attached to this factor is too limited to count for anything
where the period of delay is as excessive as is
the case in this
matter and the explanation advanced is no explanation at all. If
ever there was a case in which one can conclude
that good cause has
not been shown for condonation without even considering the
prospects of success, then this is it. Where,
in an application for
condonation, the delay is excessive and no explanation has been
given for that delay or an “explanation”
has been given
but such “explanation” amounts to no explanation at all,
I do not think that it is necessary to consider
the prospects of
success.”
[5]
1999 3 BLLR 209
(LAC) at para 10.
[6]
(2014) 1 BLLR 1
(CC)
;
2014
(2) SA 68
(CC);
2014 (1) BCLR 65
(CC); (2014) 35 ILJ 121 (CC).
(
Grootboom
)
[7]
Id at paras 50-1.
[8]
See
Brummer
v Gorfil Brothers Investments (Pty) Ltd
[2000] ZACC 3
;
[2000] (2) SA 837
(CC) at 839 F.
[9]
Grootboom
above n 6 at para 50.