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[2018] ZALCJHB 111
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Ndaba v Commission for Conciliation, Mediation and Arbitration and Others (JR1384/09) [2018] ZALCJHB 111 (14 March 2018)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
CASE
NO: JR1384/09
In
the matter between:
SIBAHLE
CYPRIAN NDABA
Applicant
and
COMMISSSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
First
Respondent
ADVOCATE
MOLETSANE
N.O. Second
Respondent
PUTCO
LIMITED
Third
Respondent
Application
heard: 12 March 2018
Judgment
delivered: 14 March 2018
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the second respondent on 26 July 2006. The review
application was filed on 19 May 2009. The applicant has filed an
application to condone the late filing of the review application,
and
it is this application that serves before the court.
[2]
This matter has a sorry history. The applicant was dismissed by the
third respondent in November 2005, on charges of misconduct
relating
to the issuing of bus tickets. The applicant clearly has a
long-standing grievance against his employer, and at the hearing
of
this application, he sought the court’s intervention in that
grievance, and requested that the court afford him substantive
redress. I attempted to explain to the applicant that the only
question for decision is whether the late filing of his review
application should be condoned and that the court has no general
jurisdiction to address his grievance.
[3]
The referral to arbitration in the present instance was preceded by a
dispute between the applicant and the union of which he
was a member.
The applicant goes so far as to assert that his union acted in
collaboration with the third respondent, to his prejudice.
The
applicant has also, over the years, engaged in correspondence with
the office of the President of the Republic of South Africa,
Ministry
of Justice and Constitutional Development, the Ministry of Labour,
and the Ministry of Safety and Security, as well as
the Offices of
the National Director of Public Prosecutions and the Public
Protector. Most of the correspondence concerns complaints
made to
these persons and offices against the applicant’s union and the
bargaining council.
[4]
Be that as it may, what the court has before it, as I have indicated,
is an application to condone the late filing of the review
application.
[5]
In his affidavit in support of the application for condonation, the
applicant records that the application was filed some three
years and
four months late. By my calculation, the application would appear to
have been filed some two and a half years late,
filed as it was on 19
May 2009, the award having been issued on 26 July 2006.
[6]
The reasons for the late filing of the review relate primarily to the
applicant’s dispute with his union and his efforts
to seek
assistance from the offices referred to above. In regard to his
prospects of success, the applicant states simply that
the third
respondent was ‘trying all the efforts to get rid of me’,
and that he did not commit the misconduct for which
he was ultimately
dismissed. In regard to any possible prejudice if condonation is not
granted, the applicant avers that he worked
for the third respondent
for 11 years, that he was the sole breadwinner, and that he was
dismissed for an act that he did not commit.
[7]
It is incumbent on the applicant to satisfy the court that the late
filing of his review application should be condoned. The
relevant
principles are those set out in
Melane v
Santam Insurance Co Ltd
1962 (4) SA 531
(A), where the matrix of factors including the degree of lateness,
the explanation for the delay, the prospects of success and
the
importance of the case, was established.
[8]
This matrix has been the subject of some modification by this court,
especially in relation to review applications. These modifications
were recently summarised by Myburgh AJ in
Makuse v
Commission for Conciliation Mediation & Arbitration and others
(2016) 37
ILJ
163 (LC), where the court emphasised the
statutory purpose of expeditious dispute resolution and the ‘strict
scrutiny’
to which applications for condonation in review
applications especially in the context of individual dismissals,
ought to be subjected.
Myburgh AJ concluded:
The
corrective steps taken by the Labour Courts as an institution and the
legislature to ensure the expeditious prosecution and
determination
of review applications outlined above underscore the statutory
imperative that labour disputes must be effectively
(and thus
expeditiously) resolved. And the strict scrutiny of combination
applications relating to the late launching of
s 145 review
applications is very much part of this overall scheme of things.
[9]
The delay in the present instance is inordinate, by any measure. The
applicant’s explanation for the delay is less than
complete and
satisfactory. The applicant does no more than refer to all of his
efforts to seek assistance from all and sundry in
relation to his
dispute with the union. I pause to note that the court file indicates
that when this matter came before Thlotlhlalemaje
J on 8 August 2017,
the application was removed from the roll and the applicant was
directed to approach the
pro bono
office for assistance and to
amend his papers within 30 days. It does not appear that the
applicant has amended his papers as directed.
In any event, when the
matter came before Gush J on 17 November 2017, the applicant was
again afforded the opportunity to seek
legal advice.
[10]
There is a record of the applicant having made an attempt to locate
the award under review and the record of the proceedings.
The
court file contains a letter from the chief executive officer of the
dispute resolution agency Tokiso, which indicates
that the applicant
attended Tokiso’s offices in September 2017 to request a record
of the arbitration hearing. The letter
records further that the case
file was retrieved from Metrofile and that Tokiso has no record of
receiving a review application
and has no arbitration recordings, nor
does the arbitrator have any notes on file.
[12]
But the fact of the matter is that 12 years after the filing of the
review application, the applicant has failed (as he is
obliged to do)
to file either the award under review or the record, or take any of
the steps established by the practice manual
to secure a record where
none can be found.
[13]
In regard to the applicant’s prospects of success, the
affidavit in support of the application for condonation discloses
nothing but bald averments to the effect that the applicant disputes
having committed the act of misconduct alleged and that his
employer
was attempting to secure his dismissal. Even if that were to be the
case, the applicant’s prospects of success must
necessarily be
determined in relation to the review application. What the applicant
has failed to do in that application is to
set out a single ground
for review or make any averment to the effect that the decision to
which the arbitrator came was so unreasonable
that a reasonable
decision maker could not come to it. The applicant (or the attorneys
who filed the application on his behalf)
appeared to be under the
erroneous impression that the merits of the review concerned the
merits of the applicant’s disciplinary
hearing and the outcome
of that hearing. As I have indicated, nothing is said about the award
which the applicant seeks to review
and why that award fails to meet
the reasonableness threshold. In short, the application for review
has no merit, if only on the
basis that it fails to make out a case
for review at the most basic level.
[14]
To the extent that the court is required to consider the relative
prejudice to the parties that the granting of condonation
would
occasion, the third respondent has an interest in finality which in
my view, in the present instance, overrides any prejudice
that the
refusal of condonation may have formed the applicant. The fact of the
matter remains that the applicant was dismissed
in 2005, some 12 ½
years ago, and that the review application is not yet at a stage
where a supplementary and answering
affidavit can be filed. To grant
condonation would be to frustrate the statutory purpose of
expeditious dispute resolution.
[15]
For all of the above reasons, in my view, the application for
condonation stands to be dismissed.
I make the following order:
1.
Condonation for the late filing of the
review application is refused.
2.
The review application is dismissed.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: In person
For
the respondent: None