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[2017] ZALCJHB 403
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Mdluli v International Union for Conservation of Nature (JS457/2016) [2017] ZALCJHB 403 (7 November 2017)
Reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: JS 457/2016
In
the matter between:
DITSE
EMILY MDLULI
Applicant
and
INTERNATIONAL
UNION FOR
CONSERVATION OF NATURE
Respondent
Heard
:
27 October 2017
Delivered
:
7 November 2017
Summary:
(Condonation – negligence of legal representatives –
applicant acted reasonably – appropriate
cost order)
judgment
LAGRANGE
J
Background
[1]
This is an application for condonation for the late filing of a
statement of claim.
[2]
The respondent also raised a
special plea relating to jurisdiction on the basis that the applicant
had referred her unfair dismissal
dispute to the CCMA on 9 September
2015 before her last working day on 18 September 2015. Consequently,
the referral to conciliation
was made before any of the dates which
could have constituted the date of her dismissal determined as by
section 190 of the LRA.
Nonetheless, at the hearing of the
condonation application and the special plea, the special plea was
withdrawn, correctly in my
view
[1]
.
Condonation
application
The
degree of lateness
[3]
A certificate of outcome was issued on 17 November 2015 and the
referral to this court should have been made by 15 February
2016.
However the referral was only made on 25 July 2016, making it five
months late, which excessively late. A proper condonation
application
itself was only filed on 22 December 2016 after the applicant had
appointed new attorneys of record, having been seriously
led down by
her original representatives.
The
explanation for the delay.
[4]
In the certificate of outcome issued on 17 November 2015, the
Commissioner indicated that the dispute could be referred to
arbitration, which is what the applicant’s erstwhile attorneys
did.
[5]
The matter was enrolled timeously for an arbitration that was due to
be heard on 19 April 2016. The respondent’s attorneys
wrote to
the applicant’s erstwhile attorneys, Hlahla Inc, on 8 February
2016 requesting the withdrawal of the referral to
arbitration. The
request was motivated on the basis that section 191 (5) (b) (ii)
and 191 (12) of the Labour Relations
Act 66 of 1995 (‘the LRA’)
applied to her dismissal because the respondent employed more than 10
employees, and her
retrenchment had been part of a process which had
involved the consultation and dismissals of more than one employee.
Accordingly,
the matter should not have been referred to arbitration.
The respondent also warned that it would seek a cost order against
the
applicant if the referral to arbitration was not withdrawn.
However, it was only a week before the arbitration the applicant was
advised by Mr Hlahla (‘Hlahla’) that the respondent was
objecting to her dispute being heard by the CCMA. To make matters
worse, she was advised that the respondent’s objection was ill
founded. However, on 19 April, the Commissioner agreed with
the
respondent and held that he didn’t have jurisdiction to the
matter as the dispute fell within the provisions of section
191 (12)
of the LRA, a ruling which ought to have been foreseen by Hlahla.
[6]
The applicant had inquired from
Hlahla, how long they had to refer the dispute and was erroneously
advised that it was 90 days from
the 19 April. Even if Hlahla
believed that he had 90 days after 19 April to make the referral, he
in fact took 94 days to do so.
In any event, by 2016 he ought to have
known the referral was already late when the ruling was handed down.
There was a time when
there was some confusion about whether the 90
day period for referring a dispute to this court under section 191
(11) of the LRA
commenced only from the expiry of the issue of the
certificate of outcome or whether it commenced after a later
jurisdictional
ruling by an arbitrator to the effect that the dispute
could not be determined by arbitration. However, any such doubts were
unequivocally
settled by the Constitutional Court judgement in
F
& J Electrical CC v Metal and Electrical Workers Union of South
Africa obo Mashatola and others
[2]
which was handed down on 17 February 2015. In that case, the
respondent union had also referred a dismissal dispute to court
late
in the belief that the 90 day period only commenced running after an
adverse jurisdictional ruling by an arbitrator. The Constitutional
Court unequivocally set the record straight:
“
The union contended that the
referral of the dispute to the Labour Court was within the prescribed
period. It seems that this contention
was based on a misconception
that the 90-day period was to be reckoned from the date of the ruling
of the CCMA. That is not so.
In this case the period had to be
reckoned from the date when the certificate was issued. In the
absence of a finding that there
was good cause for the failure to
refer the dispute within the prescribed period, the Court had no
jurisdiction to adjudicate the
dispute.”
[3]
Though
it is not unreasonable for the applicant not to have known this, it
is inconceivable that any legal professional practising
in this area
of law would not be aware of such an important judgement more than a
year after it was handed down.
[7]
In the second week of May 2016, the applicant contacted Hlahla to
find out when she could sign the statement of case to ensure
that it
was filed timelessly and was informed that he wanted to appoint
counsel and required a deposit of R 30,000. An email from
herself to
Hlahla on 17 May 2016 asking for confirmation of the amount went
unanswered. She struggled to get hold of him and it
was only at the
end of May that she was told that counsel had not yet been appointed
and her statement of case was not ready. On
1 June she received a
letter from Hlahla requiring payment of the deposit before he would
proceed further with the matter. Notwithstanding
this, Hlahla did
instruct counsel, one Advocate Tema, and the applicant arranged to
consult with him on 4 July.
[8]
When it became clear to her that they were reluctant to do anything
further until she paid a deposit, on 7 July she advised
Hlahla that
she would make a deposit on 8 July. As matters turned out the
confirmation of a deposit was sent to Hlahla on 14 July.
Shortly
after this, the applicant claims that she received a statement of
case which had been revised and was told by her attorney
that he
would see to it that it was served and filed. She does not know why
it was not filed within the 90 day period after the
jurisdictional
ruling, albeit that as a matter of law, the referral was long overdue
already.
[9]
The applicant says that she was unaware of the need to file a
condonation application until this was pointed out by her current
attorneys of record. However, she was aware that the referral might
be late but claims that when she raised it with Hlahla, he
indicated
that any delay would be very short and the court would be requested
to excuse it. She also says she was under the impression
that the
statement of case had addressed the condonation question. The
statement of case did indeed request condonation of the
late
referral, but did not rely on an apparent misconception that the 90
day period only commenced running from the date of the
jurisdictional
ruling. Instead, the condonation sought, was premised on an
assumption that the referral should have been made within
a month and
therefore was “42 days” late. Arithmetically, this
calculation makes no sense at all unless the statement
of case was
drafted towards the end of June in anticipation it would be served
then. This tends to suggest it was held back by
Hlahla pending the
receipt of funds from the applicant.
[10]
The applicant remained unaware of the status of her matter until
after Hlahla withdrew the day before a pre-trial conference
was set
down before court. She was not informed by him of the pre-trial
conference but by the respondent’s attorneys, who
had already
written to Hlahla in August 2016 asking him to submit a pre-trial
conference agenda. On 7 November 2016, the day before
the matter was
set down before a judge for a pre-trial conference, her erstwhile
attorney of record withdrew as attorney of record.
His failure to
convene a pre-trial conference led to the court awarding costs to the
respondent.
[11]
A pre-trial minute was eventually concluded on 24 October 2016
between the applicant’s current attorneys of record and
the
respondent’s attorneys. In the pre-trial minute, it was agreed
that the applicant would file a condonation application
“as
soon as possible” for the late referral of her statement of
claim. However, it took nearly two months before this
was done and no
explanation whatsoever for this additional lengthy delay was provided
either by the applicant or her new attorneys
of record. It is trite
law that a party that has not filed a condonation application
timelessly should do so as soon as possible.
[12]
Nonetheless, the very reason the referral was late in the first place
and the reason for the bulk of the delay which necessitated
the
condonation application was caused by the apparent negligence of the
applicant’s erstwhile attorneys and not by her own
conduct. She
maintained ongoing contact with them and enquired about the progress
of the referral. She was assured that if it was
late, the degree of
lateness would be slight and was clearly misled about the true extent
of the delay.
[13]
I am satisfied that although it is true that an applicant cannot
escape the consequences of poor legal advice, in this instance
she
had no reason to believe anything was seriously amiss. This was
compounded by the fact that she was not kept informed about
correspondence from the respondent’s attorneys. As things
stand, I am satisfied that her explanation for the delay in filing
her referral is reasonable.
Prospects
of success
[14]
I agree that the deponent to the respondent’s replying
affidavit could not personally depose to the factual basis of
the
merits of the applicant’s claim. On the applicant’s
version, it would appear that she has some prospect of establishing
that her retrenchment was a
fait accompli
by the time it was
raised for discussion because her post was made redundant by an
earlier restructuring, when the prospect of
her retrenchment should
have first become apparent.
Prejudice
[15]
The respondent has alleged it will suffer prejudice in general terms
but did not cite any specific fact which will make it
difficult to
defend itself against the claim and it would not have been unaware of
the possibility the applicant might still pursue
her claim in the
Labour Court.
Conclusion
[16]
Taking the above into consideration, I am satisfied that the late
referral of the statement of claim should be condoned.
[17]
On the question of costs, given
that the primary cause of the condonation application having to be
brought lies with the applicant’s
erstwhile attorney of record,
it is appropriate to follow the example of this court in the case of
Van Dyk v Autonet (A
Division of Transnet Ltd)
[4]
and consider a cost order
de
bonis propris
against
Hlahla Inc. As in that case, I am also satisfied that the opposition
to the condonation application was not frivolous.
Order
[1]
The applicant’s late referral of her statement of claim is
condoned.
[2]
Within 15 days of receipt of this order, the appicant’s
erstwhile attorneys of record, Hlahla Inc. must show good cause
why
they should not be ordered to pay costs de bonis propris to the
respondent for its costs incurred in opposing the condonation
application on account of failing to timeously refer the applicant’s
statement of claim.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
G
van der Westhuizen instructed by
MacRobert
Attorneys
RESPONDENT:
W
P Bekker instructed by Gildenhuys
Malatji
Inc.
[1]
In PPWAWU v Nasou-Via Afrika (A division of the National Education
Group (Pty) Ltd),590 dealing with the situation where
a
dismissal dispute is referred prematurely,591 the court held
that section 190(1) “should only be invoked as a means
of
determining whether the 30-day period prescribed by section 191(1)
of the Act has expired, and should not be invoked to find
that a
referral is premature, when in fact the full dismissal dispute was
conciliated”.
[2]
[2015] 5 BLLR 453
(CC)
[3]
At 461, para [30].
[4]
(2000) 21 ILJ 2484 (LC) at 2489, para [19]