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[2017] ZALCJHB 327
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Mhlari v Safety and Security Sectorial Bargaining Council and Others (JR198/2015) [2017] ZALCJHB 327 (12 September 2017)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR198/2015
In
the matter between:
ZINYEMBEZI
LLOYD MHLARI
Applicant
and
THE
SAFETY AND SECURITY SECTORIAL
BARGAINING
COUNCIL
First Respondent
COMMISSIONER
PRINCE KEKANA
N.O
.
Second
Respondent
THE
SOUTH AFRICAN POLICE SERVICES
Third
Respondent
Heard: 18 July
2017
Delivered: 12
September 2017
Summary: Refusal of
condonation for extensive and unexplained delay. No need to consider
the merits.
JUDGMENT
EDMONDS
AJ.
Introduction
[1]
This is an application to review and set aside the arbitration award
made by the Commissioner, Prince Kekana under case no:
PSSS
374-13/14, dated 12 March 2014 and to replace it with the following:
1.1
An order that the dismissal is substantively unfair;
1.2
An order for the reinstatement of the Applicant;
1.3
Alternatively ordering a complete rehearing of the matter under the
auspices of the First Respondent,
being The Safety and Security
Sectorial Bargaining Council before an arbitrator other than the
Second Respondent, being Commissioner
Prince Kekana;
1.4
Ordering that the Respondents who oppose the review application pay
the costs of the application,
jointly and severally, the one paying,
the other to be absolved;
1.5
Condoning the late filing of the review application; and
1.6
Granting the Applicant further and/or alternative relief.
The Record and The
Award
[2]
Albeit that the Applicant, Mr. Zinyembezi Lloyd Mhlari (Mhlari) made
use of the South African Police Union’s address in
Pretoria,
the South African Police Union (SAPU) did not elect to represent him
on the papers in this matter.
[3]
The Applicant was employed as a constable in the service of the Third
Respondent (SAPS).
[4]
Charges of misconduct were brought against the Applicant. He was
subjected to a disciplinary hearing and found guilty of assault
with
the intent to do grievous bodily harm and consequent to that, was
dismissed on 09 January 2013. The Applicant lodged an appeal
which
was not successful.
Safety and Security
Bargaining Council (
SSBC) hearing
[5]
The Applicant referred an unfair dismissal dispute to the First
Respondent and a con/arb procedure commenced which was finalised
on
17 February 2014. The arbitration award found that the dismissal was
procedurally and substantively fair.
[6]
The Applicant launched a review application and condonation
application in the Labour Court on 26 February 2015.
Condonation
Application
[7]
The Applicant is 278 days late after, in accordance with his
application, he requested SAPU to contest the award. This apparently
took place on or about 19 March 2014.
[8]
He alleges that he was informed that permission would have to be
sought from the SAPU’s head office, and that if and when
permission was granted the legal department would compile the court
documents. He was advised that the Safety and Security Bargaining
Council (the SSBC) would then file the audio tapes with the Labour
Court, which would then be uplifted and transcribed. He was
further
informed that the application on the merits would then be filed on
his behalf. The SSBC would then be given an opportunity
to respond
and he would be given an opportunity to reply.
[9]
In paragraph 15 of his founding affidavit, page 11 of the paginated
pages, he alleges that at all material times he was under
the
impression that his case received attention as explained. The
Applicant then alleged that during the first week of December
2014 he
made inquiries as to whether a court date had been received. He was
then informed by his union that it had been decided
that the matter
would not be taken on review.
[10]
Accordingly, the Applicant took no steps between March 2014 and
December 2014 to ascertain the status of his review application.
[11]
He further alleges that on 9 January 2015 he was informed by the
national office of the SAPU that the necessary authority for
the
matter to be taken on review had been obtained and that the file had
been sent to the SAPU’s legal representative to
compile all the
necessary court documentation.
[12]
The Applicant then alleges that at all material times his intention
was to contest the arbitration award.
[13]
Upon my questioning, I was advised that the Applicant had no
knowledge as to why his union took no steps to inform him that
they
were not taking the matter further until December 2014.
[14]
The Respondent argued, in regard to the condonation application, that
the matter had been filed nine and a half months after
the period
given for a review application. It argued that no plausible
explanation was given for the delay. It was accepted that,
in
confirmation of paragraph 7.2 of the Applicant’s supplementary
affidavit, that he did phone the Labour Court in October
and was told
that it would probably take a year to have the matter set down.
[15]
I was referred to the case of
National
Union of Mineworkers v. The Council for Mineral Technology
[1]
where the court held that in the absence of an adequate
explanation for the delay in proceeding with the application, the
Court does not need to consider the prospects of success. I was also
referred to
Colett
vs. Commission for Conciliation, Mediation and Arbitration and
Others
[2]
in which the Labour Court held that in cases where the delays were
extreme without a reasonable explanation, there was no
need for the
Court to look at the prospects of success.
[16]
In regard to prejudice, it was argued on behalf of the SAPS that it
would be prejudiced by the effluxion of time given that
it had relied
upon non-SAPS witnesses and it would have to trace those witnesses
and their memories in regard to the incident may
be faded.
[17]
Although I was addressed on the prospects of success, having read the
papers and having been addressed by both parties on the
merits, I am
satisfied that there is no acceptable reason for the delay in
bringing this application for review and that I need
not consider the
merits in this matter.
[18]
In the circumstances, I find that the application for condonation is
without merit and that I do not need to consider the substance
of the
matter. I therefore make the following order:
Order
1.
The application for condonation is dismissed;
2.
The applicant is to make payment of the costs of this application.
______________________
R.
Edmonds
Acting
Judge of the Labour Court of South Africa
Appearances
For the
Applicant
:
Andre Gerber, an official of SAPU
For the Third
Respondent : Advocate Sumaya Tilly
Instructed
by
: The State Attorney
[1]
1998 (2) ZALAC 22
[2]
2014 (6) BLLR
523