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[2017] ZALCPE 25
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Umso Construction (Pty) Ltd v Lebepe and Others (PR28/13) [2017] ZALCPE 25 (29 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Reportable
Case
no: PR 28/13
In
the matter between
UMSO
CONSTRUCTION (PTY) LTD
Applicant
and
WELLINGTON
LEBEPE
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second
Respondent
COMMISSIONER
VUYANI NOSINDWA
Third
Respondent
Heard:
04 May 2017
Delivered:
29 November 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
This is an application brought by the applicant (UMSO) to rescind the
order of this Court granted by Lallie J on 14 May 2014.
The order
sought to be rescinded was granted following the first respondent
(Willington Lebepe) having approached this court with
an application
to review and set aside a condonation ruling issued under case number
ECEL1060/13 by the third respondent (Commissioner).
The application
for rescission was only filed on 22 September 2016 together with what
purports to be an application for condonation
for its late filing.
Lebepe opposed both applications.
Background:
[2]
The protracted history of this matter is as follows;
2.1 Lebepe was dismissed
from UMSO’s employ on the basis of operational requirements
during November 2012, and his services
were officially terminated on
01 January 2013.
2.2
On or about
2 April 2013, Lebepe referred an unfair dismissal dispute to the
second respondent (CCMA). Lebepe’s referral was
filed about 61
days outside of the time periods prescribed by the Labour Relations
Act
[1]
, necessitating an
application condonation.
2.3 The Commissioner
considered the application for condonation and issued his ruling on
29 April 2013, in terms of which condonation
was refused. Lebepe
thereafter approached this Court in terms of section 145(2) of the
LRA for an order reviewing and setting aside
the condonation ruling
issued by Commissioner.
2.4 That application was
not opposed, and Lallie J had on 14 May 2014 and in the absence of
the applicant, issued an order in terms
of which the condonation
ruling was reviewed and set aside, and the matter was remitted back
to the CCMA for its fresh consideration
of the application for
condonation.
2.5 The application for
condonation was reconsidered on 23 July 2014 by the CCMA and granted.
A certificate of outcome was also
issued. Lebepe referred the dispute
in respect of his alleged unfair retrenchment to this Court by
way of a statement of
claim under case number PS 29/14.
2.6 UMSO did not file a
statement of response, and a default order was issued by Ah Shene AJ
on 25 March 2015 in favour of Lebepe,
who was granted compensation in
the amount of R183 807.00.
2.7 An urgent application
was brought before the court by UMSO to stay the warrant of execution
in respect of the default order
granted by Ah Shene AJ, pending the
finalisation of a rescission application. Whitcher J on 15 April 2015
issued a
rule nisi
in that regard, which order was confirmed
by La Grange J on 5 May 2015. The order was to lapse automatically on
10 June 2015 if
the rescission application pending before the CCMA
had not been decided by that date.
2.8 An application to
rescind Ah Shene AJ’s order was heard and granted by Van
Niekerk J on 8 June 2015. The writ of execution
was also set aside.
UMSO was also granted leave to defend Lebepe’s claim, and to
file a statement of defence within 14 days
of the date of that order.
2.9 The parties concluded
and signed pre-trial minutes on 18 November 2015. Amongst the issues
raised in the pre-trial minutes was
UMSO’s intention to raise
an unspecified
point in limine
.
2.10 The
point
in limine
was heard and upheld by Lallie J on 13
September 2016, resulting in the proceedings under case number PS
29/14 being stayed pending
the finalisation of the current
application.
The
rescission application, the need for condonation and evaluation:
[3]
UMSO seeks to rescind the default order granted by Lallie J on 14 May
2014 in terms of which the condonation ruling issued on
29 April 2013
was reviewed, set aside and the matter remitted back to the CCMA for
reconsideration.
[4]
The rescission application was filed and served on or about 30
September 2016. In its notice of motion, UMSO sought condonation
for
the late filing of the rescission to the extent that ‘
it may
be the case’
. This contention is made in circumstances
where the rescission application was filed some two years and three
months out of time.
In terms of the provisions of Rule 16A (2) (b) of
the Rules of this Court, applications for rescission ought to be
brought at least
within 15 days from the date a party acquires
knowledge of an order or judgment granted in its
absence.
[5]
UMSO holds the view that an application for condonation of the late
filing of the rescission application is not necessary on
the grounds
that it was granted leave to bring the application by virtue of
Lallie J’s order of 12 September 2016. The order
reads as
follows;
“
Having heard Mr
Sehunane, Counsel for the Applicant and Ms. Ellis, Counsel for
the Respondent and having read the papers filed
of record:
IT
IS ORDERED THAT:
1.
The first point in limine is upheld.
2.
These proceedings are stayed pending the finalisation of the
application for rescission of the order of this court dated 14 May
2014”
[6]
Of course from a plain reading of the above order, UMSO’s
argument is contrived, self-serving and nonsensical. Nowhere
in the
above order is it stated that UMSO is granted leave to bring an
application for rescission of the 14 May 2014 default order.
If any
such order was sought and granted, this would have been clear from
Lallie J’s order. Paragraph 2 of the above order
can only be
understood to mean that there is a pending application for
rescission. As at 13 September 2016, there was no such pending
application, it being common cause that the application was only
filed and served on 30 September 2016.
[7]
The rescission application is some two years and three months out of
time in view of the provisions of Rule 16A (2) (b) of the
Rules of
this Court. If the court were to be generous to UMSO and gave it the
benefit of the doubt, the delay, according to Lebepe,
would be 18
months on its own concession that it only became aware of the review
application proceedings on 8 April 2015. Whichever
date is picked,
the delay remains excessive in the extreme.
[8]
UMSO reluctantly seeks condonation for the late filing of the
rescission application. The condonation application is nonetheless
not filed separately and it is apparent that it is one those ‘
in
any event’
applications, where very little effort was put
into it. Condonation is sought on the basis that UMSO first became
aware of Lebepe’s
review application after the default order
under case number PS29-14 was issued by Ah Shene AJ in April 2015. It
further contended
that it has always refuted Lebepe’s
consistent assertions that a review application was brought, and that
this issue was
further raised in the Statement of Defence under PS
29-14 dated 26 June 2015. The high-water mark of UMSO’s
argument is that
Lebepe was always aware that it sought to bring an
application to rescind Lallie J’s order of April 2014, since it
had never
conceded that it was served with the review papers.
[9]
Significant with the developments after that default order was issued
by Ah Shene AJ is that UMSO had in April 2015, brought
an urgent
application before the court to stay the warrant of execution
issued after that default order, pending the finalisation
of a
rescission application . Whitcher J on 15 April 2015 issued a
rule
nisi
in that regard, which order was confirmed by La Grange J on
5 May 2015. The order was to lapse automatically on 10 June 2015 if
the rescission application pending before the CCMA had not been
decided by that date.
[10]
It is apparent from La Grange J’s order that it was granted on
condition that the rescission application
before the CCMA
was
decided within a particular date. As to what had happened to that
application before the CCMA is unknown, unless any reference
to the
rescission application before the CCMA as stated in the order should
read ‘
before this Court’.
[11]
Be that as it may, an application to rescind Ah Shene AJ’s
order was nonetheless heard and granted by Van Niekerk J on
8 June
2015. The writ of execution was also set aside. UMSO was also granted
leave to defend Lebepe’s claim, and to file
a statement of
defence within 14 days of the date of that order. The parties
concluded and signed pre-trial minutes on 18 November
2015.
Ordinarily, one would have thought that at least the merits of the
dismissal dispute were finally to be dealt. UMSO however
had other
ideas as evident from the launching of this application.
[12]
In the light of the above, it is apparent that UMSO must have been
aware of the review application leading to a default order
in terms
of which the condonation was reviewed and set aside. UMSO must also
have been aware of a second ruling, and a certificate
of outcome as a
result of the statement of case that led to AH Shene AJ’s
default order under case number PS29-14. Flowing
from the parties’
pre-trial minutes, other than indicating its intention to raise a
point
in limine
and by implication, an intention to pursue the
rescission application in respect of Lallie J’s order of 14 May
2014, UMSO
had done nothing in that regard.
[13]
It is therefore disingenuous for UMSO to contend that it did not have
knowledge of the facts pertaining to review proceedings
until 12
September 2016. Even if it did not have detailed knowledge of those
facts, at the very least, as at April 2015 when AH
Shene AJ’s
default order was issued, it should have been clear to UMSO that the
condonation must have been granted by the
CCMA and a certificate of
outcome issued. It is doubted that Ah Shene AJ would have issued the
default order unless she was satisfied
that the Court had the
requisite jurisdiction to do so, in the sense that the dispute before
her had been conciliated, or a certificate
of outcome had been
issued.
[14]
UMSO further contended that it was only on 12 September 2016 that it
became aware of the documents relating to the review proceedings
until 12 September 2016, hence its belated rescission application.
Again, this does not take its case any further in the light
of what
had been stated above. UMSO did not need review papers prior to
launching this rescission application. All it needed to
be aware of
at the time, which was the case, was Lallie J’s order of 14 May
2015. If UMSO had any intention to challenge
that order, as soon as
at least it had launched the urgent application to stay the execution
of the writ, it would have made every
effort to establish from the
CCMA and from the office of the Registrar of this Court, as to how
the matter ended up before Ah Shene
AJ and led to that default order.
Again, UMSO did nothing.
[15]
The
principles applicable to applications for condonation are trite as
set out in
Melane
v Santam Insurance Co. Ltd
[2]
.
A
further consideration is whether it is in the interest of justice to
grant or refuse an application for condonation.
[3]
In this case, the explanation for the excessive delay is poor in the
extreme, and hardly qualifies as an explanation. It is further
trite
that where the delay is extreme, and the applicant’s purported
explanation amounts to no explanation at all, there
would be no need
to even look at other considerations applicable to such
applications
[4]
.
This approach was confirmed by the Constitutional Court in
Grootboom
v National Prosecuting Authority and Another
[5]
where Zondo J held that:
“
Although the
existence of the prospects of success in favour of the party seeking
condonation is not decisive, it is an important
factor in favour of
granting condonation.
The interests of justice
must be determined with reference to all relevant factors. However,
some of the factors may justifiably
be left out of consideration in
certain circumstances. For example, where the delay is unacceptably
excessive and there is no explanation
for the delay, there may be no
need to consider the prospects of success. If the period of delay is
short and there is an unsatisfactory
explanation but there are
reasonable prospects of success, condonation should be granted.
However, despite the presence of reasonable
prospects of success,
condonation may be refused where the delay is excessive, the
explanation is non-existent and granting condonation
would prejudice
the other party. As a general proposition the various factors are not
individually decisive but should all be taken
into account to arrive
at a conclusion as to what is in the interests of justice.”
[Footnotes omitted]
[16]
As mentioned above, the court order sought to be rescinded was issued
14 May 2014. Since then, and after the condonation application
was
remitted back, the CCMA has issued a second ruling in terms of which
condonation was granted. The CCMA has similarly issued
a certificate
of outcome, which as things stands, remains valid. Lebepe has since
filed a statement of claim to which UMSO had
responded. The parties
have also completed, signed and filed pre-trial minutes. This case
since the second condonation ruling was
issued by the CCMA, has been
before the Court on no less than six occasions (inclusive of these
proceedings), and there is no end
in sight. The rescission
application is clearly ill-conceived, and there is merit in the
submissions made on behalf of Lebepe that
UMSO is bent on frustrating
the ultimate finalisation of his claim. In the light of all these
considerations, it follows that the
interests of justice dictate that
the application for condonation for the late filing of the rescission
application ought to be
dismissed, as well as the rescission
application itself.
[17]
I have further had regard to the requirements of law and fairness and
I am satisfied that to the extent that this application
was clearly
ill-considered and unnecessary in view of the history of this matter
as outlined in this judgment, there is no reason
why Lebepe should be
burdened with its costs.
[18]
In the premises, the following order is made:
1.
The application for condonation for the late filing of the rescission
application
is dismissed;
2.
The application for the rescission of the order granted by Lallie J
on 14 May
2014 is dismissed;
3.
The Registrar of the Court is directed to set the matter under
PS29/14 down for
trial, for three days.
4.
The applicant (Umso Construction (PTY) Limited) is ordered to pay the
costs of
this application.
_________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Adv. L Ellis
Instructed
by:
Boqwana Burns Inc.
For
the First Respondent:
M.R Sehunane of Sehunane Attorneys
[1]
Act 66 of 1995
[2]
1962
(4) SA 531
(A) at 532B-E, where it was stated that;
“
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. Any attempt to formulate a rule of thumb would
only serve to harden the arteries of what
should be a flexible
discretion. What is needed is an objective conspectus of all the
facts. Thus a slight delay and a good explanation
may help to
compensate prospects which are not strong. Or the importance of the
issue and strong prospects may tend to compensate
for a long delay.
And the Respondent’s interests in finality must not be
overlooked”
[3]
Brummer
v Gorfil Brothers Investments (Pty) Ltd
[2000] ZACC 3
;
[2000]
(2) SA 837
(CC) it was held:
This Court has held that
an application for leave to appeal will be granted if it is in the
interests of justice to do so and
that the existence of prospects of
success, though an important consideration in deciding whether to
grant leave to appeal, is
not the only factor in the determination
of the interests of justice. It is appropriate that an application
for condonation be
considered on the same basis and that such an
application should be granted if that is in the interests of justice
and refused
if it is not. The interests of justice must be
determined by reference to all relevant factors including the nature
of the relief
sought, the extent and cause of the delay, the nature
and cause of any other defect in respect of which condonation is
sought,
the effect on the administration of justice, prejudice and
the reasonableness of the applicant’s explanation for the
delay
or defect.
[4]
Moila v
Shai N.O. and Others (2007) 28 ILJ 1028 (LAC) at para 34,
where
it was held that;
“
I do not have the
slightest hesitation in concluding that this is a case where the
period of delay is excessive and the appellant's
purported
explanation for the delay is no explanation at all. I accept that
the case is very important to the appellant. However,
the weight to
be attached to this factor is too limited to count for anything
where the period of delay is as excessive as is
the case in this
matter and the explanation advanced is no explanation at all. If
ever there was a case in which one can conclude
that good cause has
not been shown for condonation without even considering the
prospects of success, then this is it. Where,
in an application for
condonation, the delay is excessive and no explanation has been
given for that delay or an “explanation”
has been given
but such “explanation” amounts to no explanation at all,
I do not think that it is necessary to consider
the prospects of
success.”
[5]
[2013]
ZACC 37
;
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC);
[2014] 1 BLLR 1
(CC); (2014) 35 ILJ 121 (CC)