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[2018] ZALCJHB 20
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Shongwe v Transnet Engineering (JR397/16) [2018] ZALCJHB 20 (15 January 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case
no: JR397/16
In
the matter between:
ME
SHONGWE
Applicant
and
TRANSNET
ENGINEERING
Respondent
Heard
:
16 May 2017
Delivered
:
16 May 2017
Edited:
15 January 2018
EX-
TEMPORE JUDGMENT
SNYMAN,
AJ
In this
matter I give the following
ex-tempore
judgment, and the
judgment reads as follows.
This
matter concerns an application by the applicant to review and set
aside an arbitration award made by the second respondent
in his
capacity as an arbitrator of the Transnet Bargaining Council (first
respondent). The application is brought in terms
of
section 145
of the
Labour Relations Act, No 66 of 1995
.
This
matter arose from the dismissal of the applicant by the third
respondent for misconduct involving making false statements,
thus
being misconduct relating to dishonesty. The applicant
challenged his dismissal as an unfair dismissal to the first
respondent. This dispute came before the second respondent for
arbitration and the second respondent decided that the applicant’s
dismissal by the third respondent was fair, and he thus dismissed the
matter. This gave rise to the applicant’s current
review
application.
The
applicant’s review application was filed on 2 June 2016.
However, and on his own version the arbitration award of
the
second respondent was received by the applicant on 25 June 2015.
The review application is thus just short of 10 months
late,
considering that the six weeks’ time limit under
section 145
of
the LRA expired on 6 August 2015. The applicant thus
needed to apply for condonation, and he did so along with
filing his
review application.
It is
necessary to first consider the application for condonation before
turning to the merits of the review application.
This is
especially so, considering the material delay which took place in
this case. I will start with considering this condonation
application by first referring to the general principles applicable
to condonation applications as set out in the case of
Melane
v Santam Insurance Company Ltd
,
1962
(
4
)
SA
531
(A)
at 532C-E, where the court said the following:
“
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 therefore, the prospects of
success and the important 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
will be no
point in granting condonation.”
But where
it comes to review applications, the condonation test has been
somewhat tightened. In dealing with an application
for
condonation for the late filing of a review application, the
Labour Appeal Court in
Hardrodt
(SA) (Pty) Ltd
v
Behardien
&
others,
(2002) 23 ILJ 1229
(LAC) at para 4, referred with approval to the judgment in
Queenstown
Fuel
Distributors
CC
v
Labuschagne N.O. &
others,
[
2000
]
21
ILJ
166
(
LAC
),
and then held as follows:
“
The
principles laid down in that case included, firstly, that there must
be a good cause for condonation in the sense that the reasons
tendered for the delay had to be convincing. In other words,
the excuse for non-compliance with the six weeks’ time
period
had to be compelling. Secondly, the court held that the
prospects of success of the applicant in the proceedings would
need
to be strong. The court qualified this by stipulating that the
exclusion of the applicant’s case had to be very
serious, i.e.
the kind that resulted in the miscarriage of justice.”
Therefore,
and in summary, in all review related condonation applications the
explanation that needs to be submitted must be compelling
and the
prospects of success need to be strong. Where it comes to the
issue of prejudice, the applicant has to show that
the miscarriage of
justice will occur if the applicant’s case is not heard.
The reason for these more stringent requirements
is that the review
applications occur after the parties have already been heard,
presented their respective cases and a finding
has been made.
Under such circumstances, considerations of justice, fairness and
expedition require that challenges of such
findings must not be
delayed and must be completed as soon as possible.
The court
in
Academic and
Professional Staff
Association
v Pretorius
SC
NO
and Others
,
(
2008
)
29
ILJ 318
(
LC
)
at paragraphs 17 to 18 dealt specifically with a condonation
application in the context of the late filing of the review
application,
and said the following:
“
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 timeframe; (b) the explanation for the
lateness or the failure to comply with timeframe;
(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
inter-related and must be weighed
against each other. In
weighing these facts, 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, these same considerations should apply to the deciding of
the applicant’s condonation application in these current
proceedings.
As
to how the explanation for the delay must be presented by an
applicant when making the application for condonation for the late
filing of the review application, the court in
Independent
Municipal Allied Trade Union
(IMATU)
obo Zungu
v South African Local
Government
Bargaining
Council and Others
, (
2010
)
31
ILJ
413 (
LC
)
at paragraph 13 said the following:
“
In
explaining the reasons for the delay it is necessary for the party
seeking condonation to fully explain the reasons 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
those events does not place a court in a
position to properly 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.”
The
Constitutional Court has as a matter of fundamental principle
confirmed that review applications must be expeditiously dealt
with,
and any determination of the issue of good cause must always be
conducted against the backdrop of this fundamental principle
in
employment law as applicable to review applications. In this
regard I specifically refer to the judgments of
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others,
(
2010
)
31
ILJ 273
(
CC
)
at paragraph 46 and
Strategic
Liquor Services v Mvumbi
NO and Others
,
(2009) 30 ILJ 1526 (CC) at paragraphs 12 to 13.
The
question that must now be answered is whether the applicant in his
condonation application, as aforesaid, has satisfied these
requirements and made out a proper case for good cause as a whole to
convince this court to grant him an indulgence and thus allow
him to
proceed with his review application. This entails, firstly,
that the delay must be considered. In this case,
and as I have
said before, the delay is close on 10 months, and this is in the
context of review applications an extensive and
grossly excessive
delay. This is the kind of delay which in itself strongly
mitigates against the granting of condonation
unless an excellent
explanation is provided.
I might
say, and by
illustration
,
that the court in
Academic
and Professional Staff
Association
,
which I have referred to above, considered a three weeks’ delay
in the context of a review application to be excessive.
Certainly, that pales by comparison when one comes to a 10 months’
delay. So the next question to answer is whether
the applicant
has provided an excellent explanation for this grossly excessive
delay.
I now
turn to this issue of the explanation, and I must say from the outset
that truth being told, this explanation is abysmal.
The
applicant was represented throughout the arbitration proceedings by
his chosen trade union, UNTU, which is part of the UTATU
/ SARWHU
group of unions (referred to in this judgment as “the union”).
The union was actually a party to the
dispute before the first
respondent. After the arbitration award had been handed down,
the union took the award to a reputable
employment law attorneys’
firm, being Fluxmans Attorneys. A consultation then took place
between a director of Fluxmans,
Cindy De Castro, and representatives
from the union. In an email dated 25 June 2015, De Castro
confirmed the view, which
was accepted and agreed to by the union,
that the review application will have no prospects of success.
I may add
that proper reasons were provided for this opinion, as can be seen
from the email which is attached to the applicant’s
Founding
Affidavit. In the Founding Affidavit the applicant says that he
debated this issue with his union, as he disagreed
with the opinion,
but his union insisted that they stood by the opinion from Fluxmans.
In that context the applicant’s
union indicated that they would
not assist him any further. According to the applicant, he then
went to the EFF in the Bloemfontein
legislator on 22 July 2015 for
assistance. According to the applicant, he was told by the EFF
representative, a Mr Tshoali,
that the applicant’s case had
been taken to the Labour Court on review by the EFF. Why and
how the EFF was supposed
to have done this, not being attorneys or
legal representatives or a trade union, is unclear and remains
unanswered. Suffice it
to say that no such challenge was in fact
made.
According
to the applicant, he then went to the Law Clinic at the University of
the Free State and then to the Law Clinic at WITS,
who both did not
help him. This also, according to the applicant, took place in
July 2015. Then, and on 17 September
2015, the applicant went
to Legal Aid, who did not help him because he was told by them that
they did not do labour matters.
I have my doubts about the
truth of this explanation, considering the many cases brought by
Legal Aid SA before this court specifically
relating to labour
disputes.
On 25
September 2015 the applicant went to the Justice Centre in
Bloemfontein and was told to first finish at the Bargaining Council.
I find this explanation unsubstantiated and unlikely. One has
to ask what was the applicant supposed to have finished in
the
Bargaining Council, especially considering the arbitration had
already been completed and an award had already been handed
down, of
which award the applicant was fully familiar with. The
Bargaining Council proceedings had been completed months
before this,
so I do not understand what was supposed to have been finished in the
Bargaining Council. The applicant then
stated that he was
advised to apply for condonation, but once again it is unclear as to
what condonation pending what process should
have been applied for.
I therefore once again must express my doubts as to the truth of this
explanation.
On 30
September 2015 the applicant says he went to the CCMA.
Similarly it is inexplicable why he would go the CCMA, as the
CCMA
clearly has nothing to do with this matter and never did. The
applicant then explains that on 2 October 2015 he went
back to the
University of Free State Law Clinic, which on his own version had
already turned him away, and this time he was advised
to go to the
UJ Law Clinic in Johannesburg. It however does not appear
that the applicant ever went to the UJ Law Clinic,
considering that
is contained in the Founding Affidavit.
The next
part off the applicant’s explanation is even more difficult to
understand. He refers to a letter received from
the Free State
Law Society acknowledging his request, but it is not indicated that
this request was even for. The letter
itself has not been
discovered. The applicant explains that in this letter his
application, and I point out that at this
time there was not even an
application in existence, would be sent to an attorney for a “merit
award”. I have
no idea what the “merit award”
would even be. Then in January 2016 the applicant is told by
the Free State
Law Society that they cannot help him further.
The next
event is 1 March 2016, where the applicant explains that he applied
for condonation and sent it to the Bargaining Council.
Yet
again this is another one of those incomprehensible explanations,
considering that the Bargaining Council proceedings had long
since
been concluded. Suffice to say the Bargaining Council refused
to accept the process and told the applicant on 3 March
2016 that he
must apply to the Labour Court for review. He was thus
pertinently told on his own explanation to do so.
The applicant
says he then went to the Labour Court on 3 March and obtained a case
number, which was given to him along with a
pro forma review
application form to complete. He explained that the Labour
Court would not help him to complete this document.
He then
went to the Vereeniging Justice Centre on 8 March 2016 but
they could not help him. He then went back to
the Labour Court
on 9 March 2016 and was apparently advised by one “Mabaso”
at the court that he could not be helped
because he had a union and
he must sue the union for gross negligence. We are not told who
this Mabaso is, and certainly
there are no confirmatory affidavits
attached to the founding affidavit. Then finally in April 2016
the applicant goes to
the Department of Labour, who reads his award
and then tells him he has a proper case for review and proper review
grounds.
This review application then follows two months later,
without any explanation for this final period.
Considering
the above summary of the explanation submitted by the applicant, it
is clear to me that this explanation is, in fact,
no explanation at
all. As I have said, I doubt the bulk of it is even true.
The fact of the matter is that the applicant
was specifically advised
from the outset that his review application had no merit. He
was given this advice by his chosen
union who represented him
throughout. This advice was supported by proper legal opinion.
On the applicant’s own
version he actually debated the matter
with his union to change its mind but they did not agree with him.
What must follow
from this explanation is that the applicant must
have known the time limits relating to review applications and where
and in what
forum the review application had to be brought.
The
manner in which the applicant therefore conducted himself thereafter
is simply completely inexplicable and smacks of being fabricated.
I am fortified in my conclusion, as set out above, by the fact that
the applicant has discovered no supporting documents or
correspondence
of any kind or any supporting confirmatory affidavit
to substantiate this purported explanation. It seems to me that
what
the applicant was doing was simply to regurgitate dates to show
he was doing something about his case and then used these purported
actions on alleged dates as a basis for providing a proper
explanation for the delay.
This is
exactly the kind of conduct this court was critical of in the
judgment of
Zungu
I have referred to above, and the
ratio
in that judgment equally complies to the conduct of the applicant in
this case. Further, and considering the applicant’s
explanation as it stands, the two months from the applicant finally
being told in April 2016 to bring the review application, and
then
June 2016, when it is ultimately brought, remains completely
unexplained. Similarly, virtually the entire October and
November 2015 and then February and March 2016 is completely
unexplained. This leaves a total period of about five months
as
being completely unexplained. This lack of explanation has to
be fatal to any condonation application, especially in the
context of
review proceedings.
The
applicant’s explanation of going from one institution to
another, all of whom did not help him, rings untrue, and especially
the explanation that Legal Aid does not assist with labour disputes
is patently untrue. In any event, the explanation of
the
applicant going to various institutions, being turned away and then
in effect doing nothing for weeks before going to the next
institution is grossly remiss. Further, why the applicant would
seek to bring an application for condonation to the Bargaining
Council or seek to resurrect the dispute in that forum, in respect of
a process that had already been completed, boggles the mind.
I have
little doubt that the applicant’s explanation is mostly a
fabricated one to hide his own conduct of simply being grossly
remiss
in filing his review application timeously. That being the
case, the consequence has to be that as set out in
National
Union of Metalworkers of SA on behalf of Nkuna & others v Wilson
Drills-Bore (Pty) Ltd t/a A & G Electrical,
(
2007
)
28 ILJ 2030
(
LC
),
where the court said the following:
“
The
court held that good cause is shown by the applicant during an
explanation that shows how and why the default occurred.
It was
further held in this case that the court should decline the granting
of condonation if it appears that the default was wilful
or 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 the
end the applicant has thus provided no explanation for what is a
material and grossly excessive delay. This should
be the end of
the matter for the applicant without even considering the
requirements of prospects of success. It was said
in
Mziya
v Putco
.
Limited, (
1999
)
BLLR
103
(
LAC
)
that:
“
There
is a further principle which is applied and that is, without a
reasonable and acceptable explanation for the delay, the prospects
of
success are immaterial.”
This
sentiment was repeated in
National
Union of Mineworkers v Council for Mineral Technology,
[1999] 3 BLLR 209
(LAC). Finally I refer to
National
Education Health & Allied Workers Union on behalf of Mofokeng &
others v Charlotte Theron Children's Home,
(
2004
)
25
ILJ 2195
(
LAC
),
where the Labour Appeal Court again said:
“
This
court has previously confirmed the principle that without a
reasonable and acceptable explanation for a delay, the prospects
of
success are immaterial.”
In my
view, the approach of the applicant in this case and in the
condonation application is that condonation was simply there for
the
asking. That is simply not so. In this regard I can do
little better than refer to what was said in
Seatlolo
and Others v Entertainment Logistics Service (A division of Gallo
Africa Ltd
; (
2011
)
32
ILJ 2206
(
LC
)
at paragraph 7, where the court said:
“
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 cognisant 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 LRA. On the facts and law as set out above this is not an
instance where condonation can be granted.”
Finally,
and even if one may believe that the applicant may have a case,
considering all the grounds as set out in his Founding
Affidavit,
this still cannot save the applicant. In this case, the
following
dictum
from the judgment in
Ferreira
v Die Burger,
(
2008
)
29
ILJ 1704
(
LAC
)
at paragraph 8 it is pertinent, 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 relationship, 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 a violation
of the
rules, then, as Myburg JP correctly decided, a lack of any
explanation at all shrugs off all other considerations.”
This
ratio
, in my view, must find direct and equal application in
the current matter. I am thus not satisfied that the applicant
has
made out a proper case for condonation. There is no
explanation for what is a material and grossly excessive delay. This
lengthy delay and lack of any explanation trumps all else. It
is thus not necessary to even consider the issue of prospects
of
success and prejudice. The applicant’s review application
must thus fail because condonation must be refused.
Because
there is no opposition in this matter, no costs issue arises.
Consequently I make the following order:
ORDER
1.
The applicant’s condonation application is dismissed.
2.
The applicant’s review application is therefore dismissed.
3.
There is no order as to costs.
_____________________
S
Snyman
Acting
Judge of the Labour Court