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[2017] ZALCJHB 375
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POPCRU obo Ntoa v SSSBC and Others (JR1815/15) [2017] ZALCJHB 375 (15 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO
: JR1815/1
DATE
:
2017-08-15
In
the matter between
POPCRU
obo MOEKETSI A
NTOA
Applicant
and
SSSBC
First respondent
M
C VAN AARDE
N.O.
Second respondent
SAPS
Third
respondent
J
U D G M E N T
STEENKAMP
J
:
This
is an application for condonation for the late filing of a review
application. I will consider it at the hand of the well-known
principles set out in
Melane v Santam Insurance Company Ltd
1968 (4) SA 531
(A).
The
extent of the delay is more than three years or 36 months. To say
that that is an excessive delay would be the understatement
of the
last three years. The explanation for that excessive delay is simply
the internal disarray of the applicant, POPCRU. The
union, by way of
its provincial chairperson, Mr Reginald Pakiso Mokalapa, sets out in
a supplementary affidavit the disarray in
which the union left this
matter and the miscommunication between various officials.
Mr
Edwards
,
who appears for the union, submitted that it did set out an
explanation for each period of the delay. That is not the case. For
example, for a period of two and a half years from 10 September 2012
to March 2015, all it says is the following:
“
In and
around [
sic
]
August 2012 a firm of attorneys namely Grosskopf Attorneys was
appointed and a brief was prepared and sent to Advocate JL Basson
for
advice with regards to the prospects of success in taking the
arbitration award on review to this Honourable Court.”
Although
the deponent claims that that was done “in and around August
2012”, he attaches a memorandum from Advocate
Basson that is
dated 10 September 2012, at a time when the matter was already well
out of time. Adv Basson reminded the Union of
this fact in his
memorandum:
“
The award is
dated 19 February 2012. In terms of s 145 of the LRA an application
for review of an arbitration award must be launched
within 6 weeks
from the date on which the award is made available to the parties. I
accordingly need clear instructions regarding
the date on which the
award was made available to the employee and his representatives and
the reason for the delay since then.”
Yet,
despite this unequivocal reminder and advice from its chosen counsel,
the union did not see fit to act with any more expedition.
It also
does not explain why its attorneys felt it necessary to obtain
counsel’s opinion on a simple matter such as this
in the first
place.
In
any event, another official, Ms Monica Monyela, then left POPCRU,
“…
and
following her departure, one Mr Ramafalo was then appointed as Head
of Department, Legal at POPCRU. I therefore [‘I’
being
the provincial secretary] continued to liaise with Ramafalo as to
what is the progress on the matter until around [
sic
]
March 2015. I wrote an email to follow up with Ramafalo and he
responded telephonically on 23
rd
March 2015.”
There
is no explanation as to what actually happened during that period of
two and a half years – from September 2012 to March
2015 -- and
no proof of the allegation that the provincial secretary, Mokalapa,
“liaised” with Ramafalo and in what
manner, and why,
having already left its member in the lurch, the Union did nothing
further for another two and a half years, despite
the fact that
Ramafalo was the so-called “Head of Department, Legal”.
There
is also no explanation whatsoever what the individual applicant, Mr
Ntoa, did to spur his union into action. Nor is there
a confirmatory
affidavit by either the employee or Mr Ramafalo. The explanation is
so poor that it amounts to no explanation at
all.
Apart
from that, as La Grange J held as long ago as 2010 in
NEHAWU v
Vanderbijlpark Society for the Aged
(2011) 32
ILJ
1959
(LC) at paragraph 9:
“
The
LRA has been in existence for more than fifteen years, and the time
limits governing referrals have not changed in that time.
It is
reasonable to expect that trade unions ought to be well aware of the
need to act timeously in the interest of their members
and to adapt
their internal procedures to accommodate those time limits, not vice
versa. The scale of an organisation cannot serve
as a justification
for delays. On the contrary, it is reasonable to expect that larger
organisations, be they trade unions or businesses,
ought to be able
to see to it that they are organised to deal with disputes of this
nature in a systematic manner to ensure that
they do not fall foul of
the time limits in the LRA. Where handling such disputes is a core
function of the organisation, this
should go without saying.”
The
same still applies today in circumstances where the LRA has now been
in existence for more than 20 years, and POPCRU is one
of the largest
unions in the country.
In
a case that Mr
Edwards
referred to in his heads of argument,
NUM v Council for Mineral Technology
[1999] 3 BLLR 209
(LAC),
the Labour Appeal Court said:
“
There is a
further principle which is applied, and that is 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.”
It
goes on to say that the courts have traditionally demonstrated their
reluctance to penalise a litigant on account of the conduct
of his
representative, but have emphasised that there is a limit beyond
which a litigant cannot escape the results of his representative’s
lack of diligence or the insufficiency of an explanation tendered.
This is exactly such a case.
Given
the excessive delay of three years and a poor explanation therefor,
in line with the authority of the LAC in
Mineral
Technology
the prospects of success are
immaterial. But even if I were to take the prospects of success into
account, it appears that the
arbitrator in this matter carefully
considered the case before him. He did take into consideration
hearsay evidence, but he did
so in circumstances where a key witness
was not available. He did take into account the evidence led at the
disciplinary hearing.
And he did so in line with the provisions of
the Act and the Rules dealing with arbitrations that are designed to
be an informal
process. It is doubtful that the employee will have
good prospects of success on review, given those circumstances.
The
application for condonation is dismissed.
-
- - - - - - - - - - - - -
STEENKAMP
J
Counsel
for Applicant
:
Adv B R Edwards
Instructed
by
Makgahlela Mashaba attorneys.
-
- - - - - - - - - - - - -
DIGITAL
AUDIO
RECORDING TRANSCRIPTIONS
No:
86 Cnr Juta & Melle Street, Arbour Square, 6th Floor
Braamfontein, JHB
TEL
/ FAX 011 339 4362 FAX: 086 726 6628
TRANSCRIBER’S
CERTIFICATE
This
is to certify that,
insofar as it is audible
, the aforegoing
is a true and correct transcript of the proceedings recorded by means
of a mechanical recorder in the matter of:
POPCRU
OBO MOEKETSI A NTOA
v
SAPS
CASE
NUMBER:
JR1815/15
RECORDED
AT:
LABOUR COURT
DATE
HELD:
2017-08-15
ORDER
TO TRANSCRIBE:
Judgment
TRANSCRIBER:
Ms M Brits
DATE
COMPLETED:
2017-09-14
NUMBER
OF CD/AUDIO FILES: 1
NUMBER
OF PAGES:
5
REPORT
ON RECORDING
1.
Indistinct words due to the following reasons:
-
Words not enunciated fully.
-
Background disturbances.
DIGITAL
AUDIO
RECORDING TRANSCRIPTIONS
No:
86 Cnr Juta & Melle Street, Arbour Square, 6th Floor
Braamfontein, JHB
TEL
/ FAX 011 339 4362 FAX: 086 726 6628