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[2017] ZALCJHB 221
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POPCRU obo Malekane v Safety and Security Sectoral Bargaining Council (JR2725/16) [2017] ZALCJHB 221 (19 May 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA HELD AT JOHANNESBURG
Reportable
Case
no: JR 2725/16
In
the matter between:
POPCRU
obo P
MALEKANE Applicant
and
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL First
Respondent
RM
LYSTER
N.O. Second
Respondent
SOUTH
AFRICAN POLICE
SERVICE Third
Respondent
Heard:
16 May 2017
Delivered:
19 May 2017
Summary:
Review of condonation ruling – Commissioner has a sole
discretion to decide on the condonation application –
good
cause inquiry is not only limited to the degree of lateness,
explanation for the delay, prospects of success, and prejudice,
–
condonation ruling may be decided using the reasonableness test.
JUDGMENT
Mabaso
AJ
Introduction
[1]
Holmes J.A (as he then was), in
Melane
v Santam Co Ltd
[1]
said:
“
And in this country one has a
human, and I trust judicial, measure of sympathy for a humble
[“person”]
[2]
struggling to reconcile an alien concept of urgency with the
un-plentiful subject of cash.”
[3]
[2]
It is imperative to remark on this
obiter
dictum
in determining this review application because: (i) the Commissioner
set out the requirements as
enunciated
in
Melane
as the
yardstick in deciding whether or not to grant a condonation
application, delivered by the applicant in an attempt to exercise
her
right of challenging the fairness of her dismissal by her erstwhile
employer;
[4]
(ii) that the
applicant raised the issue of lack of funds as one of the factors
that necessitated the late delivery of the referral
of dispute to the
Bargaining Council; and (iii) taking into account that a
consideration for condonation application calls for
the determination
of the interests of justice based on the factors required to meet the
principle of good cause as required by
section 191(2) of the
LRA.
[5]
[3]
The applicant asks this Court to review and set aside the condonation
ruling by the Commissioner, dated 2 November 2016, under
the
bargaining council case number PSSS 384-16/17. The respondents are
the Safety and Security Sectoral Bargaining Council (Bargaining
Council), the Commissioner, and the South African Police Service
(SAPS).
Relevant
Background
[4]
The applicant in this matter is an adult female who was employed by
SAPS as a police officer in the capacity of a Captain and
has worked
in the service for 21 years. The applicant’s dismissal by
SAPS sprung from allegations of misconduct which
related to an
incident of escape from custody by a detainee – one Erasmus.
[5]
The principal grounds, in this review, are that the Commissioner
committed an a reviewable irregularity in deciding the condonation
application as he “
adopted a piecemeal approach
”
in deciding it. This is because he,
inter alia:
failed to
properly take into account the prospects of success
;
the
reasons for the delay; and that the applicant would be deprived of an
opportunity to ventilate the alleged unfair dismissal
dispute
properly. Moreover, that there would be no prejudice on SAPS as it
would have an opportunity to address the issue of hearsay
evidence.
Therefore, his conclusion is one that a reasonable decision maker
could not have made based on the evidence properly
placed before him.
Averments
before the
commissioner
[6]
The referral was 20 days out of time, and the applicant – in
her affidavit – proferred the following reasons for
the delay:
upon receipt of the outcome of her appeal she approached a trade
union which had represented her during the internal
hearing, and was
advised that they were to “
first
evaluate my prospects on appeal and that after the evaluation I would
be informed of their decision”
and she then asked for advice in respect of “
what
needed to be done for the referral to be commenced with
”.
However, she was told that she was to be notified accordingly once an
assessment of the prospects of success had been formed.
[7]
The affidavit further states that she then unsuccessfully explored
all possible means in an endeavour to source the necessary
financial
assistance to be able to instruct attorneys to pursue an unfair
dismissal claim before the Bargaining Council, until
some of her
friends came to the rescue, and recommended the present attorneys of
record to her.
The
attorneys advised that the condonation application was necessary to
declare a dispute against SAPS. Hence the dispute was declared,
accompanied by the condonation application, which was disposed
of without viva voca“evidence was led”.
[8]
The application before the Commissioner was unopposed. Moreover, that
should the condonation not be granted; she was to be prejudiced
as it
was going to be difficult to obtain employment taking into account
that she had been dismissed for misconduct. Furthermore,
that the
conclusion by the chairperson of the disciplinary hearing was wrong
and cried out for a fair tribunal and that the evidence
presented at
the disciplinary hearing was based on hearsay. The chairperson of the
internal hearing was wrong in imposing a sanction
of dismissal as he
did not take into account her personal circumstances. Meaning, the
applicant expected the Commissioner to take
into account two-fold
requirements of prospects of success.
[6]
The
ruling
[9]
As stated above, the Commissioner, set for himself, five factors to
be relied upon in deciding the condonation, namely (a) the
degree of
lateness; (b) the explanation for the delay; (c) prospects of
success; (d) the importance of the case, (e) the prejudice
to the
parties (“
Melane’s
requirements”). In his attempt to amplify (b) and (c) factors,
the Commissioner said:
“
[
See
also the case of
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v CCMA & Others
[1997] 11
BLLR 1475
(LC) and Queenstown Fuel Distributors CC v J Labuschagne
and others 2002 ILJ 186 LAC.
In the latter case, the court said that the reasons for the delay
must be convincing and compelling, and
the
prospects of success must be strong
.
The court added that condonation in the case of individual dismissal
would not readily be granted.]” (Emphasis added.)
[10]
It is prudent, to interpose and mention that I do not agree with the
Commissioner’s analysis of the
Queenstown
matter,
where he says “
the
prospects of success must be strong
”
as nowhere in that judgment was that statement mentioned or alluded
to. Therefore, I conclude that his yardstick is misplaced
in this
regard. The Commissioner acknowledged that the delay was not
excessive, however, he was of the view that the reasons for
the delay
were not acceptable and that the filling of the referral did not
require any legal expertise or assistance as “
she
was not required to make out a case for unfair dismissal in that
referral”,
and the Commissioner interestingly says:
“
With regard to the prospects
she has
no realistic
prospects of success in the main action
on her own version the three witnesses testified for the respondent
it is clear from the Appeal finding with which I have been
finished
that the chair of that disciplinary hearing accepted the evidence of
those witnesses, and rejected that of the Applicant
and her
witnesses. The appeal chair also notes that the versions of the
Applicant and her witnesses was not put to the respondent’s
witnesses when they testified I cannot conclude on the basis of the
Applicant’s submissions that the Chair and the appeal
chair
reached conclusions that they were not entitled to reach. With regard
to her submissions that the chair accepted hearsay
evidence and that
the respondent’s witnesses were not present when the detainee
is actually escaped, that is irrelevant.
Applicant has not denied
that he did escape”
Applicable
principles and application thereof
[11]
The Commissioner had a discretion as to whether he grants the
condonation application or not. And this Court will not easly
tamper
with that discrection, however, if the applicant has shown that the
commissioner committed an irregularity in the proceedings
which
prevented her to have a fair hearing, then this Court will have to
come to her rescue. For example, in the matter of
Cowley
v Anglo Platinum & others
[7]
,
the Court held that—
“
when the Commissioner is
endowed with a discretion this court will be very slow to interfere
with the exercise of that discretion.
The Commissioner’s
exercise of discretion would be upset on the review if the applicant
shows, inter alia, that the Commissioner
committed a misdirection or
irregularity, or that he or she acted capriciously, or on the wrong
principle or in bad faith or unfairly
or that the exercise seeing the
discretion the Commissioner reached a decision that a reasonable
decision-maker could not reach.”
(footnote omitted)
[12]
Goldfields
Investment Ltd and Another v City Council of Johannesburg and
Another
,
[8]
the Court held as follows regarding reviewable ground where a
presiding officer has made an error of law which amounts to the one
that a reasonable decision maker could not have made taking into
account the totality of the evidence before him:
“
The law, as stated in
Ellis
v Morgan
has been accepted
in subsequent cases, and the passage which has been quoted from that
case shows that it is not merely high-handed
or arbitrary conduct
which is described as a gross irregularity; behaviour which is
perfectly well-intentioned and bona fide, though
mistaken, may come
under that description. The crucial question is whether it prevented
a fair trial of the issues. If it did prevent
a fair trial of the
issues then it will amount to a gross irregularity. Many patents
irregularities have this effect. And if from
the magistrate’s
reasons it appears that his mind was not in a state to enable him to
try the case fairly this will amount
to a latent gross irregularity.
If, on the other hand, he merely comes to a wrong decision owing to
his having made a mistake on
a point of law in relation to the
merits, this does not amount to gross irregularity. In matters
relating to the merits the magistrate
may err by taking a wrong one
of several possible views, or he may err by mistaking or
misunderstanding the point in issue.
In the latter case it may
be said that he is in a sense failing to address his mind to the true
point to be decided and therefore
failing to afford the parties a
fair trial.”
[9]
Therefore,
in casu the question that has to be answered is whether the
Commissioner committed an irregularity which deprived the
applicant
an opportunity to have her condonation to be dealt with fairly?
[13]
I agree with the Commissioner that the factors (a) to (e) are the
ones that must be looked at in deciding a condonation application,
as
per
Melane,
and for avoindance of doubt I quote the relevant paragraph in that
judgment below:
“
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, for that would be a
piecemeal approach incompatible
with a true discretion, 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 for prospects
of success which are not strong. Or the
importance of the issue and strong prospects of success may tend to
compensate for a long
delay. And the respondent’s interest in
finality must not be overlooked. I would add that discursiveness
should be discouraged
in canvassing the prospects of success in the
affidavits. I think that all the foregoing clearly emerge from
decisions of this
Court, and therefore I need not add to the
evergrowing burden of annotations by citing the cases.”
(Emphasis added.)
However,
these factors are not exhaustive as is apparent from the phrase:
“
among
the facts usually relevant”
.
Nowhere in
Melane
was it held that these are the only factors that had to be looked at.
Instead the word “among”
clearly shows that there are other factors to be considered. The
Commissioner also refers to
the
Rustenburg
Platinum Mines
matter, which introduced another requirement which will be referred
as (f), herein, “
the
attitude of the employee after the dismissal
”
[10]
— meaning what did she do after learning about the dismissal.
[14]
In
Grootboom
,
[11]
the Constitutional Court, in dealing with the condonation application
held that in deciding such application one has to look at
the
interests of justice.
[12]
The
Court acknowledged that interests of justice has no definitive
definition.
[13]
It however, at
paragraph 22, set out non exhaustive factors that are relevant in an
inquiry for determining whether it would be
in the interests of
justice to grant a condonation application as follows:
“
. . . based on
Brummer
and
Van
Wyk
, the standard for
considering an application for condonation is the interests of
justice. However, the concept “interests
of justice” is
so elastic that it is not capable of precise definition. As the two
cases demonstrate, it includes
:
the nature of the relief sought; the extent and cause of the delay;
the effect of the delay on the administration of justice and
other
litigants; the reasonableness of the explanation for the delay; the
importance of the issue to be raised in the intended
appeal; and the
prospects of success.
It is
crucial to reiterate that both
Brummer
and
Van
Wyk
emphasise that the
ultimate determination of what is in the interests of justice must
reflect due regard to all the relevant factors
but it is not
necessarily limited to those mentioned above. The particular
circumstances of each case will determine which of these
factors are
relevant.” (Emphasis added.)
Further,
Zondo J remarked as follows in explaining the inter-relationship
between these factors :
“
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.”
[14]
(Own emphasis)
T
hus
gleaned from the above, these are in summary, the factors that are
relevant in the interest of justice enquiry include: the
existence of
reasonable prospects of success, the importance of the issue raised
by the matter, prejudice and the reasonableness
of the applicant’s
explanation for the delay, the extent and cause period of delay, the
effect of the delay on the administration
of justice and other
litigants. Sometimes, even if the explanation for the delay is not
sufficiently explained, the court may grant
condonation on the basis
that the other party is not opposing it, or an applicant did not show
any disinterest in the matter.
[15]
[15]
Taking into account these principles, in casu the Commissioner failed
to deal with factors (d), part of (c), (e), and (f);
in that, the
applicant clearly stated the importance of the case to her in that it
will be difficult to impress prospective employers
because her record
will reflect that SAPS dismissed her. Further, that SAPS was not
going to be prejudiced by the granting of the
condonation because it
had not opposed it and moreover it was going to have an opportunity
to ventilate the matter before an independent
person; and the issue
of hearsay evidence that the applicant alleged had been relied upon
in concluding that she had committed
the misconduct dismissed for.
Further, that one of the issues that she wanted to raise was the
issue of the harshness of sanction
as she believes that the
chairperson of the hearing failed to take into account the service
period, as she is of the view that
the relationship has not
irretrievably broken down.
[16]
The Commissioner failed to properly consider that the applicant,
following her dismissal, did take steps to challenge it.
Unfortunately, she could not afford fees for attorneys. The
Commissioner’s conclusion that there was no need for the
lawyers
failed to take into account that a party who is completing a
referral has to state briefly the reasons why she is of the view that
the dismissal is unfair, and that the nature of the charges the
applicant was dismissed for might lead to criminal charges being
leveled against her; and therefore, whatever she was to write on the
referral might trigger the State to pursue charges based on
the
seriousness of the accusations.
[17]
Regarding the applicant having a union at the time of dismissal, she
explained that she did approach that union and was advised
that they
were to revert to her once they have assessed the merits of the
matter. The averments in the affidavit crystalize that
she ended up
being assisted by friends to financially pursue the matter of the
alleged unfair dismissal accompanied by the condonation
application.
[18]
It is further clear that the Commissioner did not plainly understand
the test that he had to follow, taking into account that
he
misunderstood the
Queenstown’s
case by saying the test is one of “must be strong”
prospects of success instead of “a reasonable” prospects
of success. Further, the Commissioner seemed not to understand that
other factors had to be looked at such as the prejudice to
the
parties. It is clear in the ruling that the Commissioner does not
deal with the issue of harshness of sanction as pleaded by
the
applicant, therefore under those circurmstances, it is clear that the
Commissioner failed to apply her mind to this issue which
is one of
the crucial aspect in deciding prospects of success. Further the
Commissioner failed to deal with the issue of prejudice.Therefore,
the Commissioner reached an unreasonable conclusion.
[19]
Based on the above, I conclude that the Commissioner’s ruling
has to be reviewed and set aside taking into account the
interest of
justice.
[20]
I have taken into account that the dismissal took place almost a year
ago, the records of the condonation application are complete,
therefore, to postpone the matter will further delay its finalisation
as the bargaining council will have to again appoint a commissioner
to decide on the condonation application. Under the circumstances, I
am of the view that submitting the matter back to the bargaining
council would serve no interests of justice, hence I have made the
following order.
Order
[21]
In the circumstances the following order is made:
1.
The
condonation ruling issued by Commissioner RM Lyster, under the
auspices of the first respondent under case number PSSS384-16/17,
dated 2 November 2016 is reviewed and set aside. Thus, replaced with
the order that:
“
The
applicant’s condonation application for the late referral of
the unfair dismissal dispute against South African
Police
Service is hereby granted.”
2.
There is no
order as to costs.
__________________
S
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: E Sithole
Instructed
by: Makgahle Mashaba Attorneys
For
the Respondent:
Instructed
by:
[1]
1962 (4) SA 531
(A). (
Melane
)
[2]
Added, taking into account that the
original word used is offensive
.
[3]
Id at 532.
[4]
Section 185(a) of the Labour
Relations Act 66 of 1995 (LRA).
[5]
Section 191(2) of the LRA makes
provision for condonation of the late referral of disputes to the
CCMA and reads:
“
If the employee shows good
cause at any time, the council or the Commission may permit the
employee to refer the dispute after
the relevant time limit in
subsection (1) has expired.”
[6]
SATAWU obo Matlatso v Commission
for Conciliation, Mediation and Arbitration and Others
[2013] JOL 30727
(LC) at para 5:
“
There is, however,
one
aspect of the enquiry which the Commissioner failed to conduct in
this matter
, which is
whether the relationship between the parties had irretrievably
broken down as a result of the misconduct, warranting
the sanction
of dismissal…” (Emphasis added.)
[7]
JR 2219/2007;
[2016] JOL 35884
(LC)
at para 21. It was also referred to in
Seardel
Group Trading (Pty) Ltd t/a Romatex Home Textiles v Petersen and
Others
[2010] ZALC 127
;
[2011] 2 BLLR 211
(LC) ; (2011) 32 ILJ 439 (LC) with approval.
[8]
1938 TPD 551.
[9]
Id at p 560.
[10]
Rustenburg Platinum Mines Ltd
(Rustenburg Section) v CCMA & Others
[1997] 11 BLLR 1475
(LC) at 1480.
[11]
Grootboom v National
Prosecuting Authority and Another
[2013]
ZACC 37
;
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC);
[2014] 1 BLLR 1
(CC); (2014) 35 ILJ 121 (CC).
[12]
Id at
para
22.
[13]
Id.
[14]
Id at para 50-1.
[15]
City Power (Pty) Ltd v Grinpal
Energy Services (Pty) Ltd & others
[2015] 36 ILJ 1423 (CC) at para 15.