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[2017] ZALCJHB 458
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SATAWU obo Mbewe and Others v Barloworld Logistics (EHL) (JS691/2015) [2017] ZALCJHB 458 (28 November 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JS 691 / 2015
In the matter between:
SATAWU obo LEONARD MBEWE AND 171
OTHERS
Applicants
and
BARLOWORLD LOGISTICS (EHL)
Respondent
Heard: 18 May 2017
Delivered: 28 November 2017
Summary:
Practice and procedure – failure to properly prosecute a
statement of claim – principles considered –
excessive
delay may non suit the applicant
Practice
and procedure – imperative of expeditious resolution of
employment disputes – principles considered
Application
for condonation – principles considered – material delay
without proper explanation – application
dismissed with costs
JUDGMENT
SNYMAN, AJ
Introduction
[1]
Yet
again, even though it’s been more than two decades into the new
Labour Relations Act (‘LRA’)
[1]
,
this Court is confronted with a material and excessive delay
occasioned by a well established trade union in prosecuting an unfair
dismissal claim on behalf of its members. What makes this situation
particularly sad is that the members of trade unions who are
often
not versed in the intricacies of employment law dispute resolution,
are entirely dependent on their union, and are left without
recourse
against the employer when the case is sunk due to these kind of
failures by the trade union. This matter is a case
in point.
[2]
The
applicants brought a claim based on an unfair dismissal for
operational requirements to the Labour Court, in terms of Section
191(5)(b) of the LRA, by way of a statement of claim filed on 19
December 2016. What makes this problematic is that the actual
dismissal of the individual applicants took place as far back as 9
February 2015, which was pursued timeously to the National Bargaining
Council for the Road Freight Industry, and the certificate of failure
to settle was issued following a failure to resolve the dispute
at
conciliation, on 8 April 2015. This means that it has taken
some 20(twenty) months after failure to settle to bring this
dispute
before the Labour Court.
[3]
The
applicants did apply for condonation due to this failure, which
application was filed on 19 January 2017. Needless to say, it
was
opposed by the respondent who filed an answering affidavit on 1
February 2017.
[4]
The
parties conducted a pre-trial conference in terms of Rule 6(4) of the
Labour Court Rules on 5 April 2017, and in this minute,
the issue of
condonation for the late filing of the statement of claim was
reserved for determination prior to the hearing of this
matter on the
merits. I have been now tasked to decide the issue of
condonation in this judgment.
[5]
However,
and before I deal with the condonation application itself, it is
important to make some remarks about the essential requirement
of the
expeditious resolution of employment disputes, especially considering
the grossly excessive delay in this instance.
The reality is
that it is trite that there exists a particular requirement of
expedition where it comes to the prosecution of employment
law
disputes, and any condonation application must be considered in that
context.
[2]
Whilst there exists a plethora of judgments that specifically
emphasize the need for expedition in employment law disputes,
I would
like to highlight three judgments of the Constitutional Court.
In
Khumalo
and Another v Member of the Executive Council for Education:
KwaZulu-Natal
[3]
,
Skweyiya J said:
‘…
the
importance of resolving labour disputes in good time is thus central
to the LRA framework. ….
’
.
Further, Jafta J in
Aviation
Union of SA and Another v SA Airways (Pty) Ltd and Others
[4]
,
held:
‘…
.Speedy
resolution is a distinctive feature of adjudication in labour
relations disputes ….
’
.
And finally, in
National
Education Health and Allied Workers Union v University of Cape Town
and Others
[5]
Ngcobo J said:
‘
By
their very nature labour disputes must be resolved expeditiously and
be brought to finality so that the parties can organize
their affairs
accordingly. They affect our economy and labour peace. It is in the
public interest that labour disputes be resolved
speedily …’.
[6]
In
the light of these clear sentiments, the applicants surely have a
mountain to climb, considering the period of 20(twenty) months
it
took to just refer the case to this Court. This kind of delay
could in itself lead to the matter being disposed of, due
to the
excessive nature of it.
[6]
Because of the imperative of expeditious dispute resolution in
employment disputes, such an excessive delay would normally
lead,
barring truly exceptional considerations and good cause, that the
referral as a matter of general principle should be disposed
of for
this reason alone.
[7]
[7]
But
at least the applicants have applied for condonation. The
question now is whether this condonation application is sufficient
to
establish the necessary exceptional circumstances and proper good
cause to allow this matter to proceed on the merits thereof.
I
will now proceed to decide this condonation application by first
setting out the relevant background facts.
Relevant
background
[8]
The
respondent is in the business of a logistics and supply chain
management solutions service provider. It had a service
agreement in place with Ellerines, in terms of which it provided such
services to Ellerines, and in particular at a dedicated distribution
centre in Boksburg. On 12 August 2014 Ellerines went into
business rescue under the Companies Act.
[8]
As a result of this business rescue and financial predicament of
Ellerines, the Boksburg distribution centre was no longer
required,
and was closed.
[9]
The
closure of the Boksburg distribution centre naturally affected the
employment of all the employees of the respondent employed
in the
distribution centre. As a result, the respondent commenced
restructuring proceedings as contemplated by Section 189A
of the LRA,
considering the number of employees involved and affected by the
restructuring.
[9]
These proceedings commenced on 13 November 2014.
[10]
The
parties opted for facilitated consultations under the auspices of the
CCMA, as contemplated by Section 189A(3) of the LRA, and
such
facilitated consultations took place over the period from 10 December
2014 to 6 February 2015, when it concluded. The
applicant
union, which will be referred to in this judgment as ‘SATAWU’,
participated in all these consultations.
However, and
unfortunately, it was not possible to avoid the retrenchment of
employees, despite these consultations, and the respondent
then
issued the individual applicants with notices of retrenchment on 9
February 2015.
[11]
The
applicants then pursued an unfair dismissal dispute to the National
Bargaining Council for the Road Freight Industry, as touched
on
above. This dispute could not be resolved, and a certificate of
failure to settle followed on 8 April 2015. The
next step in
the dispute resolution process would be to refer the dispute to the
Labour Court in terms of Section 191(5)(b) of
the LRA, as read with
Section 189A(19). As stated, this only happened 19 December
2016.
Condonation
principles
[12]
In
terms of Section 191(11)(a) of the LRA, the referral of any dispute
to the Labour Court as contemplated by Section 191(5)(b),
must be
made within 90 (ninety) days after the council (as applicable
in
casu
)
has certified that the dispute remains unresolved. Accordingly,
the referral of the applicants was due on 8 July 2015, but
only
followed on 19 December 2016, clearly way out of time. In terms
of Section 191(11)(b), the Labour Court may condone
non-observance of
that time limit on good cause shown.
[13]
It is
trite that in order to show good cause, an applicant must apply for
condonation. Where it comes to deciding condonation
applications, the law in this regard is now well settled on the basis
of the following principles as set out in the case of
Melane
v Santam Insurance Co Ltd
[10]
:
‘
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.
’
[14]
The
Court in
Academic
and Professional Staff Association v Pretorius NO and Others
[11]
applied the aforesaid
ratio
in
Melane
in the context of dispute resolution in the Labour Court, as follows:
‘
The
factors which the court takes into consideration in assessing whether
or not to grant condonation are: (a) the degree of lateness
or
non-compliance with the prescribed time frame; (b) the explanation
for the lateness or the failure to comply with time frame;
(c)
prospects of success or bona fide defence in the main case; (d) the
importance of the case; (e) the respondent's interest in
the finality
of the judgment; (f) the convenience of the court; and (g) avoidance
of unnecessary delay in the administration of
justice. …. It
is trite law that these factors are not individually decisive but are
interrelated and must be weighed against
each other. In weighing
these factors for instance, a good explanation for the lateness may
assist the applicant in compensating
for weak prospects of success.
Similarly, strong prospects of success may compensate the inadequate
explanation and long delay.
’
In my view, this
ratio
in
Academic and Professional Staff Association
properly and
succinctly summarizes all this Court must consider when exercising
its discretion whether or not to grant condonation.
[15]
Dealing
with the issue of the delay
per
se
,
I am of the view that the longer the delay, the worse it is for the
applicant seeking condonation. As touched on above,
a grossly
excessive delay could in itself be seen to be fatal to the issue of
good cause. As a general benchmark, delays
in excess of two
months after the expiry of the time limit can generally be described
to start becoming excessive.
[12]
[16]
The
next element to considering any condonation application in terms of
the
ratio
in
Academic
and Professional Staff Association
above,
is that of the explanation provided for the delay. This must be
a proper explanation supported by sufficient particularity,
dealing
with the entire period of the delay. In
Seatlolo
and others v Entertainment Logistics Service
(
a
division of Gallo Africa Ltd
)
[13]
the Court
held:
‘
In
order
to exercise its discretion whether or not to grant condonation, this
court must be appraised of all the facts and circumstances
relating
to the delay. The applicant for condonation must therefore provide a
satisfactory explanation for each period of delay.
See
NUMSA
& another v Hillside Aluminium
[2005] ZALC 25
;
[2005]
6 BLLR 601
(LC) where Murphy AJ held that an unsatisfactory
explanation for any period of delay will normally be fatal to an
application,
irrespective of the applicant's prospects of success.
’
[17]
I
consider the issue of a proper explanation for the entire period of
the delay to be the most critical component to any condonation
application. As to how this explanation must be provided, the
Court in
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and Others
[14]
provided the
following guidance:
‘
In
explaining the reason for the delay it is necessary for the party
seeking condonation to fully explain the reason for the delay
in
order for the court to be in a proper position to assess whether or
not the explanation is a good one. This in my view requires
an
explanation which covers the full length of the delay. The mere
listing of significant events which took place during the period
in
question without an explanation for the time that lapsed between
these events does not place a court in a position properly
to assess
the explanation for the delay. This amounts to nothing more than a
recordal of the dates relevant to the processing of
a dispute or
application, as the case may be.
’
[18]
Next,
the applicant for condonation must deal with the issue of prejudice.
Often, prejudice is neglected in a condonation
application and dealt
with in a very cursory manner. This kind of approach is
inappropriate. The applicant must set
out in what manner the
applicant would be prejudiced if condonation is refused, again with
sufficient particularity. The
prejudice the applicant would
suffer should be compared to the possible prejudice the other party
would suffer if condonation is
granted, so as to enable the Court to
make a balanced decision on this.
[19]
The
issue of prospects of success must also be considered. In this
regard, it is not necessary to decide whether the applicant
would be
successful in the applicant’s case and whether that case is
true. All that is necessary to consider is whether,
if the
claim as advanced in the statement of claim of the applicant is true,
the applicant would succeed.
[15]
[20]
However,
and where it comes to considering the issue of prospects of success,
there is a rider. It is this rider that illustrates
the
critical importance of the explanation for the delay. Where an
applicant fails to provide an explanation for the delay or material
parts of the delay, the issue of prospects of success in fact become
an irrelevant consideration.
[16]
In particular, in
NUM
v Council for Mineral Technology
[17]
the
Court held:
‘
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 good prospects of
success, no matter how good the explanation for the delay,
an
application for condonation should be refused …
’
[21]
Finally,
and despite all the normal condonation considerations of length of
the delay, explanation for the delay, prejudice, and
prospects of
success, and especially in employment law disputes, there is one
final consideration. This is the consideration
of the interests
of justice.
[18]
What this entails is that in the particular case, there must be some
very unique or exceptional circumstance that necessitates
the Court
to consider the case on the merits, because it is in the interest of
justice to do so. A prime example is the judgment
in
National
Education Health and Allied Workers Union on behalf of Mofokeng and
Others v Charlotte Theron Children's Home
,
[19]
where the Court considered a case of a policy of an employer that
only white house mothers were allowed to look after white children,
with the policy being a continuous and ongoing practice. Even
though the appellant in that case had not made out a proper
case for
condonation on the traditional condonation considerations referred to
above, the Court in
Charlotte
Theron Children's Home
nonetheless held:
[20]
‘
It
is clearly in the interests of justice that this kind of case be
heard, particularly when appellants are able to support their
submissions regarding the prospects of success with a statement of
respondent's policy given on affidavit and which appears to
confirm
that the policy is saturated with a racist outlook.
’
Evaluation
[22]
Applying
the aforesaid considerations, I shall firstly deal with the length of
the delay. As I have already said above, the
delay is grossly
excessive. It is excessive to the extent that it infringes on a
fair and just determination of the matter.
The delay in
bringing the dispute to Court was some 17(seventeen) months after
expiry of the deadline, and if the allowed period
of 90(ninety) days
is added to it, some 20(twenty) months after proceedings concluded in
the council. This vastly exceeds
the period allowed. Some
comparisons in the case law bear mentioning. In
Makuse
v Commission for Conciliation, Mediation and Arbitration and
Others
[21]
the Court described an 8(eight) month delay as ‘egregious’.
The Court in
Moila
v Shai NO and Others
[22]
described a delay of just more than a year as ‘an excessive
delay’, as did the Court in
Maseko
v Commission for Conciliation, Mediation and Arbitration and
Others
[23]
for a delay of 18(eighteen) months.
[24]
In
Khumalo
[25]
the Court was in fact seized with a similar delay of 20(twenty)
months as is the case
in
casu
,
and said it was ‘unreasonable’ and ‘significant’.
In the end, and as said in
Police
and Prisons Civil Rights Union v Ledwaba NO and Others
[26]
:
‘
The
delay of some two years, as matters currently stand, especially
considering the short time-limits imposed by the Labour Court
Rules
and the Practice Manual, is grossly excessive and unpalatable. The
situation is contrary to the important interest of finality
of
litigation.
’
[23]
The
next issue to be considered is the explanation for the delay.
Because of the excessive delay, this explanation must, for
the want
of a better singular description, be exceptional. In general terms,
in the founding affidavit, the explanation is based
on what is
described by SATAWU as being the application of a ‘protocol’,
which seems to have led to problems. In
terms of this
‘protocol’, difficult cases go from the local office, to
the provincial office and then to the head office
of the union.
In line with this protocol, the case of the individual applicants
started off in the local office, after which
it was referred to the
provincial office, and then finally to the legal department at head
office.
[24]
According
to the explanation provided, the local office sent a letter to the
Gauteng provincial office on 27 June 2015, requesting
assistance with
the referral of the matter to the Labour Court. There is no
explanation of any kind as to what was done on
the matter between the
date of failure to settle on 8 April 2015 and the writing of this
letter on 27 June 2015, a period in excess
of two and a half months.
[25]
Then,
and for what is referred to in the founding affidavit as an ‘unknown
reason’, there was a delay in transferring
the matter to the
head office from the provincial office. All that is explained
is that on 3 August 2015 a letter is sent
to head office by the
provincial office legal department, requesting what is described as
‘urgent intervention’ in
getting the matter referred to
the Labour Court. It also clear from the letter that all the
documents relating to the matter
was attached to the letter.
This leaves a delay of more than a month equally unexplained.
[26]
As to
the interaction between the local office, where the matter
originated, and the head office having now been seized with the
matter, there is only one instance of such interaction. It
appears that all the local office did to follow up on the matter
at
head office is a single letter sent on 29 September 2015.
[27]
The
matter was attended to by one Vusi Shongwe (‘Shongwe’) at
the head office, once transferred there. It is never
explained
when he became seized with the matter, or what he actually did about
it, other than a single reference to him obtaining
a case number from
the Labour Court in September 2015.
[28]
Shongwe
resigned in May 2016, and after his resignation was charged for
fraud, which included defrauding members of the union by
taking their
settlement payments for himself. Lebogang Tooka (‘Tooka’)
was then employed by SATAWU on 1 August 2016,
and took over Shongwe’s
cases. According to Tooka, he had a number of other pressing
issues to deal with first and
then attended to the matter
in
casu
on 6 September 2016, by requesting a meeting with the individual
applicants. Significantly, and in a letter dated 6 September 2016,
Tooka writes to the provincial and local offices of the union,
recording that the dispute is way out of time, that the head office
official who dealt with the matter only applied for a case number and
did nothing thereafter, and an urgent meeting needed to be
held with
at least five individual members to prepare the statement of case and
condonation application.
[29]
Despite
this need for expedition as conveyed by Tooka, a meeting was only
arranged for 16 September 2016, but was postponed to 20
September and
again to 4 October 2016. These postponements were all due to other
commitments by the various parties involved.
[30]
The
meeting then took place on 4 October 2016, attended by some of the
individual applicants, where the matter was discussed.
In this
meeting, it was also agreed that Martha Nhlapo (‘Nhlapo’)
one of the individual applicants and a former shop
steward, would
immediately send Tooka all the necessary information to draft the
statement of case. Nhlapo did not do so,
and following e-mail
reminders by Tooka on 6, 10 and 12 October 2016 to her, Nhlapo
finally provided all the information by 20
October 2016.
[31]
Tooka
undertook in writing on 21 October 2016 to immediately start drafting
the statement of case. It is then explained that
due his ‘work
load’, however, he had other matters to attend to. Nothing was
done, and on 10 November 2016, Tooka requested
another meeting with
Nhlapo, which was then scheduled only for 23 November 2016 because
Nhlapo had other ‘training’.
It is not said whether
this meeting actually happened and there is no explanation as to why
the statement of claim is then only
filed on 19 December 2016.
[32]
Turning
then to the individual applicants themselves, the explanation is
sparse. There is a reference to one of the individual applicants,
Leonard Mbewe (‘Mbewe’) e-mailing the local branch
following up on the matter, on 30 August and 9 September 2015.
Mbewe also followed up by e-mail on 10 November 2016. Then there is
another reference to Nhlapo following up on the status of the
matter
on 23 and 25 February 2016 by e-mail. It is immediately
apparent that this follow-up communication, so to speak, is
few and
far between.
[33]
As
to all the other individual applicants, there are two general
explanations submitted. The one is that the individual applicants
‘continuously telephonically’ contacted SATAWU about the
status of the matter, and tried to but were unable to come
into
contact with Shongwe. The second explanation seems to
contradict the first one, in that it is said that because the
individual applicants had been dismissed, it was difficult for them
to get funds to continuously contact the union. No
other
particulars are provided.
[34]
The
above constitutes the sum total of the explanation provided. As
said above, considering the excessive delay, the explanation
must be
exceptional. Is this explanation exceptional? In my view,
far from it. To call it poor is an understatement.
In
fact, for the reasons to follow, the vast majority of the delay was
either simply unexplained, or the explanation submitted
was
completely unacceptable.
[35]
Starting
with the most obvious part of the explanation first, the individual
applicants squarely found their case for condonation
on the
delinquency of SATAWU. It their argument, it is suggested that
it was all Shongwe’s fault, who could be seen
to be a
miscreant, and they should not be blamed for it. What is in the
end undeniable is that Shongwe did absolutely nothing
on the matter
from September 2015 when he obtained a case number until May 2016
when he resigned and left, a total period of about
9(nine) months.
But this simply cannot serve to exonerate the individual applicants.
The Courts have been consistently making it
clear to all litigants
that as a general proposition, a litigant stands or falls by the
conduct of his or her chosen representative
and the representative’s
conduct should be imputed on the litigant.
[27]
In the context of employment law, this would include the case where
the representative is a trade union, especially such
a large and long
established trade union such as SATAWU.
[28]
In
National
Education Health and Allied Workers Union and others v Vanderbijlpark
Society for the Aged
[29]
it was held:
‘
The
LRA has been in existence for more than 15 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 interests 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.
’
In
Zungu
[30]
the Court added:
‘
Trade
unions exist for the very reason of looking after the interests of
their members. When employees join a trade union they entrust
responsibility for issues relating to their employment and the
termination thereof to the trade union. In the circumstances of
this
relationship I believe that there is an even greater limit on the
extent to which trade union members can escape the results
of their
trade union's lack of diligence. Trade unions have a vested interest
in the processing and outcome of disputes referred
on behalf of their
members. Their very existence is about acting in the interests of
their members. Members for their part are
happy to entrust their
labour relations affairs to their union. This case is a good example
of where the trade union has been involved
with the dispute from the
inception. … In these circumstances a member such as Mr Zungu
would have to put up good reasons
as to why he should be allowed to
escape the consequences of the union's lack of diligence …
’
[36]
The
task that was entrusted to SATAWU was not a difficult one. All
it had to do was to file a statement of case with the Labour
Court
within 90 (ninety) days. It dismally and completely failed in this
task. As said in
Food
and Allied Workers Union v Ngcobo and Another
[31]
:
‘
In
our view the mandate given to FAWU was a relatively simple one — it
was to take such steps as were
necessary to have the respondents'
labour dispute with their employer determined in accordance with the
provisions of the LRA.
That it could easily have done. FAWU committed
breaches of its mandate. It did so in the first place by failing to
timeously refer
the respondents' dispute with Nestlé to the
Labour Court (LC) and in the second place by failing to secure
condonation
for that failure. In both instances it failed to act
honestly or diligently. When the dispute remained unresolved and a
certificate
to that effect was issued by the CCMA on 18 June 2002,
the respondents acquired an unconditional right to approach the LC to
have
that dispute resolved. FAWU well knew that the respondents'
dispute had to be referred to the LC within 90 days of the issuance
by the CCMA of its certificate. That much emerges from its own
correspondence to the respondents and Nestlé. FAWU, moreover,
failed to inform the respondents that the matter had not been
referred within the requisite 90 days or to keep them apprised of
the
progress of their case (because, one suspects, there was none)
…
’
The
exact same considerations apply
in
casu
.
[37]
There
can be no doubt that the conduct of Shongwe, which accounts for 9
(nine) months of the total delay, is grossly negligent,
shows a
complete lack of diligence and can even be described as recklessly
remiss. If this is then imputed onto the individual
applicants,
it is simply an explanation that cannot be accepted.
[32]
In
National
Union Of Metalworkers of SA on behalf of Nkuna and Others v Wilson
Drills-Bore (Pty) Ltd t/a A and G Electrical,
[33]
where the Court
said the following:
‘
In
Saraiva
Construction (Pty) Ltd v Zululand Electrical and Engineering
Wholesalers (Pty) Ltd
1975 (1) SA 612
(D), the court held that good cause is shown by the
applicant giving an explanation that shows how and why the default
occurred.
It was further held in this case that the court could
decline the granting of condonation if it appears that the default
was wilful
or was due to gross negligence on the part of the
applicant. In fact, the court could on this ground alone decline to
grant an
indulgence to the applicant.’
In
short, an explanation based on the inaction of Shongwe is no
explanation at all. The Court in
Catering
Pleasure and Food Workers Union v National Brands Ltd
[34]
said:
‘
There
is no proper reason why the referral was out of time, other than the
inaction of the union's attorneys which inaction does
not amount to
an acceptable explanation.’
[38]
But
Shongwe is not the only union functionary that failed. It must be
considered that there a period of about two and a half months
(8
April to 27 June 2015) from when the certificate of failure to settle
was issued until the matter was referred to the provincial
office for
attention, which is completely unexplained. Then there is a
further delay of more than a month (to 3 August 2015)
where the
provincial office does nothing, which is said to be for an ‘unknown
reason’, which equally is no explanation
at all.
Accordingly, there is a total delay of close on 4 (four) months
occasioned in the local and regional offices of SATAWU
which is
entirely unexplained.
[39]
This
brings me to Tooka. He became seized with the matter beginning
August 2016. But he was too busy and could only get to
it on 6
September 2016. By 21 October 2016 he says he will draft the
statement of case, but again he is too busy and does
nothing to 10
November 2016. All this must be seen in the context of Tooka
already knowing in September 2016 that the matter
is materially late
and urgent intervention was required. Finally, and
inexplicably, it takes him from middle November to
19 December 2016
to file the statement of claim, with no explanation at all for this
period. In my view, this indicates that for
the period of 5 (five)
months from when Tooka was seized with the matter, a period of about
two months is completely unexplained,
and the most of the remaining
period is explained on the basis of Tooka being too busy with other
matters which in itself is an
unacceptable explanation. As held in
National
Union of Metalworkers of SA on behalf of Thilivali v Fry's Metals (A
Division of Zimco Group) and Others
:
[35]
‘
In
effect, the basis of the explanation is to place all blame on the
fact that the union official tasked with this matter was too
busy
with all kinds of other attendances to get to this matter and on this
basis the individual applicant should be exonerated.
The fact that
this kind of explanation is simply not acceptable per se is already
dealt with above …
’
[40]
This
then only leaves the consideration of what the individual applicants
themselves did about prosecuting their matter, despite
entrusting
SATAWU to attend to it. The reason why this must be considered is
because of the principle that a litigant could possibly
escape being
visited with the consequence of the failure of his or her chosen
representative to properly prosecute the claim, if
it can be shown
that the litigant did all he or she could to ensure that the matter
was properly prosecuted. This would include
regularly following up
with the representative on the progress in the matter, and the taking
of remedial action if it becomes apparent
that matters are taking
much too long. In
Saloojee
and Another NNO v Minister of Community Development
[36]
the Court
articulated the principle as follows:
‘
If,
as here, the stage is reached where it must become obvious also to
layman that there is a protracted delay, he cannot sit passively
by,
without so much as directing any reminder or enquiry to his attorney
and expect to be exonerated of all blame; and if, as here,
the
explanation offered to this court is patently insufficient, he cannot
be heard to claim that insufficiency should be overlooked
merely
because he has left the matter entirely in the hands of his attorney.
If he realises upon the aptitude or remissness of
his own attorney,
he should at least explain that none of it is to be imputed to
himself. …’
[41]
The
above ratio in
Saloojee
has been consistently applied in this Court.
[37]
In particular, and in
Superb
Meat Supplies CC v Maritz
[38]
the Court held as
follows:
‘
....
I also am of the judgement that the appellant through the agency of
its member Schreiber was negligent in not monitoring progress
of its
case … The court has not been informed of any communication
and it can be inferred that the appellant took no active
interest in
its own litigation, a further reason to conclude that it was
negligent.
As
I have indicated Trengove AJA held in the De Wet case that
disinterest and failure to keep in touch with an attorney barred
relief. Attorneys cannot be blamed and the appellants - as in this
matter - were the authors of their own problems. The present
respondent has not erred and it would be inequitable to visit him
with the prejudice and inconvenience flowing from such conduct.
…’
And
in
Thilivali
[39]
the Court
said:
‘…
the
court has on numerous occasions made it clear that an individual
applicant can simply not sit by without regularly following
up on its
litigation and the progress therein, even after tasking a
representative to deal with the matter …
’
[42]
Considering
the aforesaid, did the individual applicants do enough themselves?
Unfortunately, and in my view, they did even
less than the bare
minimum. The allegation that the individual applicants regularly
telephoned SATAWU to follow up on the matter
is vague, bald and
entirely unsubstantiated, and completely lacking in any
particularity. It not sufficient to make a two
line statement
that the individual applicants telephoned SATAWU ‘regularly’.
It must be explained who telephoned,
who at the union was spoken to,
and when this happened. It must then be indicated, so as to
excuse the individual applicants
from themselves taking positive
intervening action, that they were assured that the matter was well
in hand and were informed as
to the status of the matter at that
point. If for example they were misled by the union official as
to the status of the
matter, then the Court may well have sympathy
for their plight. The individual applicants however submitted
no explanation
in these terms. This explanation is thus woefully
inadequate.
[43]
The
explanation on behalf of the individual applicants is further
bedevilled by the fact that it is contained in an affidavit deposed
to by Tooka, who only became employed in August 2016 and would simply
not know what had happened earlier. There is no confirmatory
affidavit by Shongwe or any of the individual applicants (other than
Nhlapo and Mbewe). This means that even the veracity
of the
minimal explanation submitted is in question.
[44]
In
fact, the explanation offered by the individual applicants is
self-defeating. The founding affidavit records that the
individual applicants regularly tried to contact Shongwe, but could
not get hold of him at all. Considering the individual applicants
were dismissed as far back as February 2015, this should have set
alarm bells loudly ringing. The individual applicants could not
just
leave matters there. At least by the beginning of 2016, they must
have realized that there could be serious problems in the
prosecution
of their case, and they should have then taken the necessary effort
to ensure that SATAWU takes immediate action by
way of allocating
another official or briefing attorneys or whatever. But they
did absolutely nothing.
[45]
Finally,
I turn to the individual explanations by Nhlapo and Mbewe.
Instead of makings things better, it makes it even worse.
It appears
that these two individual applicants were the ones responsible for
driving the case on behalf of the other individuals.
Considering
their explanations at it stands, what it shows is that for a total
period of some 20(twenty) months, there were a total
of five e-mail
enquiries as to the status of the matter, but with no contact at all
between at least end September 2015 and beginning
February 2016, as
well as between March 2016 and September 2016. These are huge gaps,
totalling more than 10 (ten) months, in which
there is no contact.
In
Moraka
v National Bargaining Council for the Chemical Industry and
Others
[40]
,
the Court said the following when deciding to dismiss a review
application:
'A
significant consideration in deciding whether or not to dismiss this
review application is the casual approach adopted to the
litigation
by the applicant which indicates that he viewed it as a matter that
could be returned to from time to time when he or
his representatives
chose to do so. Such long periods of inactivity cannot be reconciled
with the conduct of a party that has a
consistent interest in
pursuing a case and takes the necessary steps to do so without undue
delay.
'
In
my view, there is no reason why this same approach could not equally
be applied to the inactivity of Nhlapo and Mbewe, and the
condonation
application
in
casu
.
[46]
Therefore,
I do not believe that the individual applicants came close to doing
enough to ensure that they are not visited with the
consequences of
the failure by SATAWU. This means that in effect, they have no
explanation for the delay as well, and must
suffer the same fate as a
result. I consider the matter
in
casu
to be quite comparable to the judgment in
Seatlolo
[41]
,
with the following
dictum
being particularly apposite:
‘
The
applicants have failed to advance a compelling explanation for the
egregious delays of more than two years. There are lengthy
periods of
delay and sheer inactivity that are unexplained involving the
applicants themselves; there is no explanation from SACCAWU
of the
persistence with the flawed joinder application and consequent delay
of two years; there is no explanation for the delays
in bringing the
condonation application. If SACCAWU was a party its failure to
explain the second and third aspects would result
in the application
being dismissed. …. Indeed a trade union is not an independent
legal representative acting as an agent
to the detriment of a client.
It is a collective embodiment of its members and is akin to a curator
at litem in civil proceedings
- in other words, it is 'the
institutional embodiment of the several members involved in the
dispute': Manyele & others v Maizecor
(Pty) Ltd & another
(2002)
23 ILJ 1578 (LC)
;
[2002] 10 BLLR 972
(LC) at para 13. The trade union is its members
and thus the applicants cannot escape the consequences of their
decision to be
members of SACCAWU and act collectively under its
auspices.’
And
in
National
Education Health and Allied Workers Union on behalf of Leduka v
National Research Foundation
[42]
the Court said:
‘…
It
was squarely in the hands of the applicants to ensure that this case
was properly prosecuted, and if they failed in this respect
the
nature of the case cannot save them. I must further emphasise that if
this case was so important, and had the kind of impetus
and
consequences the applicants now suggest, it is simply inexplicable
that they allowed it to in effect lay dormant for years.
This
argument is actually self-defeating
.’
[47]
As
touched on above, there is also the contradiction in the individual
applicants’ explanation, being that on the one hand
it is said
that they regularly contacted SATAWU, and on the other it is said
that they did not have money because of their dismissal
to regularly
contact SATAWU. In
Chemical
Energy Paper Printing Wood and Allied Workers Union and Others v
Metal Box t/a MB Glass
[43]
the Court said the following, which in my view similarly describes
the conduct of the applicants
in
casu
,
in this respect:
‘
It
is abundantly clear from the self-contradictions in the explanation
for the delay that the applicants and/or their attorneys
had
unfortunately not been candid with this court. It is obvious also on
the papers, that the applicants have been as lax as their
legal
representatives in the prosecution of their claim.
’
[48]
In
sum, and where it comes to the explanation offered by the applicants,
a total period of about 6 (six) months of the delay is
completely
unexplained. The explanation offered for a further period of
delay of about 12 (twelve) months is simply unacceptable
and should
be viewed to be no explanation at all. Added to this, the
individual applicants themselves failed to follow up
on their matter,
and take positive action to intervene when it must have become clear
that there was an undue delay with nothing
happening about their
case. There is simply nothing that convinces me that the
individual applicants should not fall because
of the failures by
SATAWU, their chosen representative.
[49]
Because
of the fact that there is no explanation for such a material part of
what is an excessive delay, this should be the end
of the matter for
the applicants. In line with the principles as set out above,
the issue of prospects of success has become
an irrelevant
consideration, and thus need not even be considered. As said in
Colett
v Commission for Conciliation, Mediation and Arbitration and
Others
[44]
:
‘
There
are overwhelming precedents in this court, the Supreme Court of
Appeal and the Constitutional Court for the proposition that
where
there is a flagrant or gross failure to comply with the rules of
court condonation may be refused without considering the
prospects of
success. …’
[50]
Only
one last consideration remains. Would it be in the interest of
justice to nonetheless grant condonation? I do not
consider
this to be the case. A consideration of the common cause facts
and issues in dispute in the pre-trial minute makes
it clear that the
matter concerns a stock standard, for the want of a better
description, Section 189A retrenchment dispute.
In terms of the
pre-trial minute, it was common cause that Ellerines decided to close
the particular distribution centre, which
on face value justifies the
rationale for the retrenchment. Further it was common cause
that a proper Section 189(3) notice
was issued and facilitated
consultation took place under the auspices of the CCMA, in which
SATAWU participated. There was
also never an application
brought by SATAWU in terms of Section 189A(13) to challenge the
restructuring process, which means that
procedural fairness is
actually an irrelevant consideration in these proceedings.
[45]
The applicants make out no case concerning the employment status of
the individual applicants after dismissal.
[46]
To sum up, there is nothing exceptional about this case which could
serve to override the normal condonation principles.
Even if
the applicants’ retrenchment case may have some merit, it is my
view that the following
dictum
in
Ferreira
v Die Burger
[47]
would find application
in
casu
,
where the Court said
‘
I
am sympathetic to the fact that the applicant may have a case but,
were we to grant this application, this court would subvert
a crucial
principle in matters which deal with personal relationships, namely
labour relations, that these disputes have to be
dealt with
expeditiously and finalized as quickly as possible. Where in a case
such as this, there has been so flagrant of violation
of the rules,
then, as Myburgh JP correctly decided, a lack of any explanation at
all shrugs off other considerations.’
[51]
Even
the applicants’ case of prejudice is nothing exceptional.
There is a general contention of prejudice to the individual
applicants if they cannot pursue the merits of their case. But
this would be the obvious result in any condonation application
that
is refused. The applicants say they are not to blame for what
happened, which contention, in the light of what has been
discussed
above, does not have substance. It is also alleged that once
Tooka became seized with the matter, things happened
expeditiously,
which contention is once again not accurate based on what is
discussed above. In
Seatlolo
[48]
the Court said the
following, which in my view would equally apply
in
casu
:
‘
I
am cognizant of Mr Boda's plea that the doors of justice should
remain open to litigants who are laypersons and reliant solely
on
their union and who genuinely believed they were in safe hands.
However, there are at the same time limits beyond which the
doors of
justice cannot but be closed - in these circumstances where they
themselves are to blame for not holding their union accountable
and
where the Act is premised on expedition and the employer is likely to
be prejudiced by permitting the matter to proceed on
the merits. ….
[52]
The
individual applicants would in any event have a damages claim against
SATAWU, considering what is set out above, to ameliorate
their
prejudice.
[49]
[53]
Insofar
as it may be suggested by the applicants that they have such a good
case that all other considerations must be considered
to be
subordinate and in effect shrugged off, I cannot agree with such a
proposition. Condonation is not just there for the asking,
no matter
what the case may be. In
Seatlolo
[50]
the Court
held:
‘
It
is trite law that condonation should only be granted where the legal
requirements have been met and is not a default option.
It remains an
indulgence granted by a court exercising its discretion whilst being
cognizant of the criticism emanating from the
Constitutional Court
and the SCA and bearing in mind the primary objective of the
expeditious resolution of disputes articulated
in the Act.
’
I
agree with these sentiments. Overall, the following
dictum
in
Leduka
[51]
aptly describes the conduct of the applicants
in
casu
:
‘
Overall,
the conduct of the applicants in casu is indicative of a litigant
that remains inactive for lengthy periods, acts when
it chooses and
how it chooses, and acts with complete impunity where it comes to the
rules of court and the interests of the other
party.
[54]
For
all the above reasons, the applicants’ condonation application
is doomed to fail. The grossly excessive delays without
any
explanation for most of it, trumps all else. There is simply no basis
to depart from the normal and accepted principle that
in such
circumstances, the matter must now be brought to an end, once and for
all, by way of the refusal of condonation.
Conclusion
[55]
In
all the circumstances as set out above, the applicants have failed to
make out a case for the granting of condonation. The case
has become
stale to the point that it must be finally disposed of, no matter
what the merits thereof may be. It is in the interest
of justice and
in line with the requirement of the expeditious resolution of
employment dispute that this matter must be finally
dismissed. The
applicants’ condonation application thus falls to be dismissed.
[56]
This
only leaves the issue of costs. I have a wide discretion where
it comes to the issue of costs, having regard to the provisions
of
Section 162(1) of the LRA. In this instance, I believe a costs order
is indeed appropriate. It must have been clear to the applicants
that
the application had no merit, especially after the filing of the
answering affidavit. The applicants made no effort to explain
most of
the delay, and simply approached this matter on the basis that they
are entitled to be heard above all else. This approach
was always
fatally flawed, especially considering what this Court has said over
and over again about lengthy delays, poor explanations
and the
requirement of expedition. I however believe this is a case
where only the trade union, SATAWU should bear the costs,
considering
that it was the principal cause for the failure and has let down its
members badly.
Order
[57]
For
all of the reasons as set out above, I make the following order:
1.
The
applicants’ condonation application is dismissed.
2.
The
applicants’ claim is consequently dismissed.
3.
The
applicant union, South African Transport and Allied Workers Union, is
ordered to pay the respondent’s costs.
_____________________
S Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicants:
Mr Lebogang Tooka – Union Official
For the
Respondent:
Mr S Dube of Bowmans Inc Attorneys
[1]
Act 66 of 1995.
[2]
National Union
of Metalworkers of SA on behalf of Thilivali v Fry's Metals (A
Division of Zimco Group) and Others
(2015)
36 ILJ 232 (LC) at para 25.
[3]
(2014) 35
ILJ
613 (CC) at para 42.
[4]
(2011) 32
ILJ
2861
(CC) at para 76.
[5]
(2003) 24
ILJ
95 (CC) at para 31. See also
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others
(2010) 31 ILJ 273 (CC) at para 46;
Strategic
Liquor Services v Mvumbi NO and Others
(2009) 30 ILJ 1526 (CC) at paras 12 – 13.
[6]
See
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2016)
37 ILJ 313 (CC) at para 47;
Khumalo
(
supra
)
at paras 68 – 69.
[7]
National
Education Health and Allied Workers Union on behalf of Leduka v
National Research Foundation
(2017)
38 ILJ 430 (LC) at para 17.
[8]
Act 71 of 2008.
[9]
See Section 189A(1) of the LRA.
[10]
1962
(4) SA 531
(A) 532C-E.
[11]
(2008) 29
ILJ
318 (LC) paras 17–18. See also
Mndebele
and Others v Xstrata SA (Pty) Ltd t/a Xstrata Alloys (Rustenburg
Plant)
(2016)
37 ILJ 2610 (LAC) at para 4.
[12]
Compare
Plastics
Convertors Association of SA and Another v Metal and Engineering
Industries Bargaining Council and Others
(2017)
38 ILJ 2081 (LC) at para 15;
Silplat
(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration
and Others
(2011) 32 ILJ 1739 (LC)
at
para 24;
National
Education Health and Allied Workers Union and Others v
Vanderbijlpark Society for the Aged
(2011) 32 ILJ 1959 (LC) at para 2;
Van
Dyk v Autonet (A Division of Transnet Ltd)
(2000) 21 ILJ 2484 (LC) at para 12.
[13]
(2011) 32 ILJ 2206
(LC)
at
para 11.
[14]
(2010) 31
ILJ
1413
(LC) para 13.
[15]
See
Nature's
Choice Products (Pty) Ltd v Food and Allied Workers Union and Others
(2014) 35 ILJ 1512 (LAC) at para 21
;
National Union of Metalworkers of SA and Others v Crisburd (Pty) Ltd
(2008) 29 ILJ 694 (LC) at para 8;
Dial
Tech CC v Hudson and Another
(2007) 28 ILJ 1237 (LC) at para 38;
Gaoshubelwe
and Others v Pie Man's Pantry (Pty) Ltd
(2009) 30 ILJ 347 (LC) at para 27.
[16]
See
Mziya
v Putco Ltd
(1999)
3 BLLR 103
(LAC) at para 9;
Moila
v Shai NO and Others
(2007) 28 ILJ 1028 (LAC) at para 34;
Universal
Product Network (Pty) Ltd v Mabaso and Others
(2006) 27 ILJ 991 (LAC) at para 20;
Colett
v Commission for Conciliation, Mediation and Arbitration and Others
(2014)
35
ILJ
1948 (LAC)
at
para 38
;
Mgobhozi
v Naidoo NO and Others
(2006)
27
ILJ
786
(LAC)
at
para 34.
[17]
(1999) 3 BLLR 209
(LAC) at para 10.
[18]
See
MJRM
Transport Services CC v Commission for Conciliation, Mediation and
Arbitration and Others
(2017)
38 ILJ 414 (LC) at para 22;
Sasol
Infrachem v Sefafe and Others
(2015) 36 ILJ 655 (LAC) at para 29;
Thiso
and Others v Moodley NO and Others
(2015) 36 ILJ 1628 (LC) at para 7;
SA
Post Office Ltd v CCMA and Others
(2011)
32
ILJ
2442
(LAC)
at
para
17
.
[19]
(2004) 25 ILJ 2195
(LAC) at paras 24 and 26.
[20]
Id at para 25.
The Court went on to say this was a dispute of an ‘exceptional
nature’ at para 26 of the judgment.
[21]
(2016)
37 ILJ 163 (LC) at para 15
[22]
(2007) 28 ILJ 1028
(LAC) at para 27.
[23]
(2017)
38 ILJ 203 (LC – para 15
[24]
See also
Transport
and Allied Workers Union of SA and Others v Unitrans Fuel and
Chemical (Pty) Ltd
(2015) 36 ILJ 2822 (LAC) at para 34 where the Court dealt with a
delay of a year, and
GIWUSA
on behalf of Heyneke v Klein Karoo Kooperasie Bpk
(2005) 26 ILJ 1083 (LC) at para 14 where the delay was a 11 months.
[25]
(
supra
)
at paras 50 and 68.
[26]
(2016) 37 ILJ 493
(LC) at para 21.
[27]
See
Saloojee
and Another NNO v Minister of Community Development
1965
(2) SA 135
(A)
at
141C-E;
Old
Mutual Life Assurance Co SA Ltd v Gumbi
(2007) 28 ILJ 1499 (SCA) at para 20;
Universal
Product Network
(
supra
)
at para 18;
Superb
Meat Supplies CC v Maritz
(2004) 25 ILJ 96 (LAC) at para 16;
Frans
Meintjies New Tyre Manufacturers v Bargaining Council and Others
(2012) 33 ILJ 1725 (LC) at para 36.
[28]
Food and Allied
Workers Union v Ngcobo and Another
(2013) 34 ILJ 1383 (SCA) at para 46.
[29]
(2011) 32
ILJ
1959 (LC)
at
para 9. See also
Thilivali
(
supra
)
at paras 31 – 32;
SA
Revenue Services v Ntshintshi and Others
(2014) 35 ILJ 255 (LC) at para 16;
BHP
Billiton Hotazel Manganese Mines (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration and Others
(2013) 34 ILJ 2857 (LC) at para 16.
[30]
(
supra
)
at para 25.
[31]
(2013) 34 ILJ 1383
(SCA) at para 46. The judgment was upheld by the
Constitutional Court in
Food
and Allied Workers Union v Ngcobo NO and Another
(2013) 34 ILJ 3061
(CC).
[32]
See
Arnott
v Kunene Solutions and Services (Pty) Ltd
(2002)
23 ILJ 1367 (LC) at paras 30 – 32.
[33]
(2007) 28 ILJ 2030
(LC) at para 16.
[34]
(2007) 28 ILJ 1064
(LC) at para 26.
[35]
(2015) 36 ILJ 232
(LC) at para 29.
[36]
1965 (2) SA 135
(A) at 141E-H.
[37]
See
Silplat
(
supra
)
32 ILJ 1739 (LC) at para 54;
Zungu
(
supra
)
at paras 24 – 25;
Van
Niekerk v Zondi NO and Another
(2001) 22 ILJ 1202 (LC) at para 27;
Parker
v V3 Consulting Engineers (Pty) Ltd
(2000)
21
ILJ
1192 (LC)
at
para 17.
[38]
(2004) 25 ILJ 96
(LAC) at para 27.
[39]
(supra) at para 28
[40]
(2011) 32
ILJ
667 (LC)
at
para 20.
[41]
(
supra
)
at para 26.
[42]
(2017) 38 ILJ 430
(LC) at para 46.
[43]
(2005) 26 ILJ 92
(LC) at para 8.
[44]
(2014) 35
ILJ
1948 (LAC)
at
para 38.
[45]
See
National
Union of Metalworkers of SA and Others v SA Five Engineering and
Others
(2004)
25
ILJ
2358 (LC)
;
Banks
and Another v Coca-Cola SA — A Division of Coca-Cola Africa
(Pty) Ltd
(2007)
28
ILJ
2748 (LC);
National
Union of Metalworkers of SA on behalf of Members v General Motors of
SA (Pty) Ltd
(2009) 30
ILJ
1861 (LC);
National
Union of Mineworkers v Anglo American Platinum Ltd and Others
(2014) 35 ILJ 1024 (LC).
[46]
Vanderbijlpark
Society for the Aged
(
supra
)
at para 22.
[47]
(2008) 29
ILJ
1704 (LAC) at para 8.
[48]
(2011) 32 ILJ 2206
(LC) at paras 25 – 26.
[49]
See
Food
and Allied Workers Union v Ngcobo
(
supra
)
at para 45.
[50]
(
supra
)
para 27. See also
3G
Mobile (Pty) Limited v Raphela NO and Others
[2014]
JOL 32479
(LC) at para 33.
[51]
(
supra
)
at para 44.