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[2017] ZALCCT 65
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Modiokgotla v Head of Department: Northern Cape Provincial Government: Dept of Education and Others (C177/2016) [2017] ZALCCT 65 (12 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
(CAPE
TOWN)
CASE
NUMBER
: C177/2016
DATE
:
12 OCTOBER 2017
In
the matter between:
AM
MODIOKGOTLA
Applicant
and
HEAD OF DEPARTMENT:
NORTHERN CAPE PROVINCIAL
GOVERNMENT:
DEPT OF EDUCATION
First respondent
J B MTHEMBU
N.O.
Second respondent
EDUCATION LABOUR RELATIONS
COUNCIL
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 by Mr Modiokgotla who was employed by the Department
of
Education of the Northern Cape.
It
arises from a rather unfortunate set of events where he had referred
a dispute to the Education Labour Relations Council.
The matter
came before Commissioner Jerome Mthembu who dismissed the referral
because the employee’s counsel had failed to
abide by an
agreement to deliver a written argument at a certain date.
In
short, what happened is that the parties agreed to file written
submissions. The Department’s attorney asked for
an
extension, which was granted, until 24 October 2014. The
employee’s counsel however did not deliver his submissions
timeously, although Commissioner Mthembu advised his attorney that he
had to file his submissions by 24 October.
Then
Mr
Lechwano
,
who appears for the employee today and also appeared in the
arbitration, telephoned the Commissioner and asked him for an
indulgence
to file his submissions by Monday 27 October. The
Commissioner refused to grant that indulgence. Despite that, Mr
Lechwano
did not file the submissions on time and in those
circumstances the Commissioner dismissed the referral
What
happened then is that, instead of taking that ruling on review, the
employee -- assisted by attorneys and counsel -- delivered
an
application to the Labour Court to compel the Bargaining Council to
set the matter down for arbitration. That application
failed
for obvious reasons and judgment was handed down in November 2015.
The
application to review Commissioner Mthembu’s dismissal ruling
was only filed on 8 April 2016. The application is
about 14
months late. I must consider that against the principles set
out in
Melane v Santam Insurance Company
Limited
1962 (4) SA 531(A)
and the
jurisprudence that follows that well-known judgment.
Firstly,
the delay is clearly excessive. What become most important are
the reasons for the delay. Mr
Lechwano
argued that, at
least for the first period until November 2015, the employee cannot
be blamed as he acted on the wrong legal advice.
But even if that is
so, the Court must then consider the further delay of five months
from November 2015 until April 2016.
By that stage the employee
and his legal team were now well aware of the fact that they were
already well out of time. Despite
that, they waited another
five months to bring this application (and I stress that at all
stages the employee was represented by
attorneys and counsel).
The
only reason proffered by the employee in his application for
condonation is the following:
“
In
summary, apart from my failed application to compel, the delay in
filing my review application was occasioned, on the one hand,
by the
unavailability of counsel during the festive holidays which shortly
followed the delivery of the Court’s judgment
and on the other
hand the exigencies of counsel’s practice in February 2016
which led to him taking longer than usual to
finalise the drafting of
the review application.
It
is relevant to mention in this regard that counsel officially
returned to work from vacation leave only towards the end of January
2016.”
Those
two paragraphs raise more questions than answers. Firstly, I
have no idea what it means to say that counsel “officially”
returned to work from vacation leave “towards the end of
January 2016” and when that might have been. Secondly,
this Court has held on numerous occasions that what the Court has
called a “collective slumber” that the country appears
to
go into in December is no excuse for lawyers not doing their job.
There are no
dies non
in this Court.
There
is no explanation why, given the fact that the matter was already
well out of time, the employee’s attorneys and counsel
in whom
he placed his trust could not have spent half an hour to draft a
simple review application as well as an application for
condonation.
There is also no explanation why counsel was necessary at all.
The employee sought the advice of attorneys.
It is inexplicable
why those attorneys could not draft a simple application and if they
did not feel comfortable doing so, despite
the fact of presumably
charging their client a fee, there is no explanation why they could
not have sought the help of counsel
who was available.
There
is no explanation what “the exigencies of counsel’s
practice in February 2016” mean. If it means that
counsel
was simply too busy, again, it raises the question why another
counsel could not be briefed or why the attorneys could
not do the
job themselves.
And
in any event, it still leaves the question of what happened between
February and April 2016. The answer appears to be
nothing.
There are also no affidavits attached by either the attorneys or
counsel to explain why they did not come to the
assistance of their
client.
It
may be so that the employee was let down by his legal team, but this
Court and the High Courts have held in numerous cases, staring
with
Saloojee
’s
case
[1]
as far back as the 1960’s, that there is a limit beyond which a
litigant cannot escape the laxity or negligence of his chosen
legal
representatives. This is such a case.
As
Mr
Petersen
pointed out, this Court has held in
NUMSA
v Hillside Aluminium
[2005] ZALC 25
;
[2005] 6 BLLR 601
(LC) at paras 18 and 19 that the factors set out in
Melane
and expanded upon by the Constitutional Court in
Grootboom
v National Prosecuting Authority
2014
(1) BCLR 65
(CC) at para 22 may be left out of consideration in
certain circumstances. For example, where the delay is unacceptably
excessive
and there is no proper explanation for the delay, there is
no need to consider the prospects of success. This is exactly
such a case.
Mr
Petersen
has also referred to the well-known case of
Makuse
v CCMA
(2016) 37
ILJ
163 (LC);
[2015] 12 BLLR 1216
(LC) at para 5 where this Court made it
clear that an application for condonation will be subject to strict
scrutiny and that the
principles of condonation in the context of the
Labour Relations Act which makes provision for the effective and
expeditious resolution
of labour disputes, should be applied on a
much stricter basis than the other civil courts.
The
explanation proffered by the employee is so poor that it amounts to
no explanation at all. In those circumstances the
Court need
not consider the prospects of success. Both parties have asked
for costs to follow the result. I see no reason
to differ.
THE
APPLICATION FOR CONDONATION -- AND THUS THE APPLICATION FOR REVIEW --
IS DISMISSED WITH COSTS
.
_________________________
STEENKAMP,
J
APPEARANCES
APPLICANT:
A.I.B. Lechwano
Instructed
by
Fizane attorneys (Bloemfontein).
FIRST
RESPONDENT: F. Petersen
Instructed
by:
Mjila and partners (Kimberley).
[1]
Saloojee
v Minister of Community Development
1965
1 All SA 521
(A).