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[2018] ZALCJHB 126
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Schoeman v Anglo American Platinum Limited (JS317/16) [2018] ZALCJHB 126 (20 March 2018)
IN THE LABOUR COURT OF SOUTH
AFRICA, JOHANNESBURG
Not Reportable
Not of interest to other judges
Case no: JS 317/16
In the
matter between:
ERNEST
THEODORIS SCHOEMAN
Applicant
And
ANGLO
AMERICAN PLATINUM LIMTED
Respondent
Heard:
02 March 2018
Delivered:
20 March 2018
Summary:
Practice and procedure: Condonation application – Adequate and
acceptable explanation for delay – No prospects
of success in
unfair dismissal claim- Absent prospects of success condonation
brutum fulmen
– Condonation not in interests of justice
– Application dismissed
JUDGMENT
LEKALE, AJ
Introduction and background
[1] The applicant was employed by the
respondent as a Senior Foreman: Mechanics until 01 May 2015 when he
was dismissed on the basis
of the respondent’s operational
requirements.
[2] He felt aggrieved by the dismissal
and referred the dispute concerning alleged unfair dismissal to the
Commission for Conciliation,
Mediation and Arbitration (“CCMA”)
for resolution. When the dispute remained unresolved on 03 June 2015
after an attempt
at conciliation, he requested arbitration.
[3] On 03 September 2015 the
arbitrating CCMA Commissioner issued a jurisdictional ruling, inter
alia, to the effect that the matter
should be referred to this court
for adjudication following a successful objection to CCMA
jurisdiction by the respondent.
[4] On or about 27 October 2015 the
applicant was informed by his trade union Solidarity, which had been
representing him before
the CCMA, that they could not represent him
at the Labour Court according to their rules of membership.
[5] In November 2015 applicant’s
wife was diagnosed with cancer and became seriously
ill requiring costly
medical treatment.
[6] In December 2015 the applicant
underwent a surgical procedure related to an unbearable chronic neck
pain. His wife was also
operated on during that month.
[7] Prior to the applicant’s
retrenchment he was suspended for eighteen (18) months at the behest
of the Department of Mineral
Resources (“DMR”) which was
conducting an investigation into allegations of serious racially
related conduct on his
part, among others.
[8] During the course of January 2016
and the beginning of February 2016, the applicant received treatment
and attended regularly
at specialists and physicians.
[9] About or between August 2015 and
beginning of January 2016 the applicant was in contact with the
respondent’s mine captain
when the possibility of his
re-employment at one of the respondent’s shafts was
discussed and pursued.
[10] At the beginning of April 2016
the applicant approached his current attorney for advice and
assistance in referring the dispute
to court for adjudication. He,
eventually, instructed his legal representative to assist after
securing the required funds.
[11] The referral and condonation
application were drafted by counsel and eventually filed with this
court on 04 May 2016 after
the affidavit in support of the
condonation application was signed on 26 April 2016.
Issues for determination
[12] I am enjoined in the instant
matter to determine whether or not good cause exists for condonation
of the late filing of the
statement of claim regard being had to the
reason for the delay involved and the applicant’s prospects of
success in the
alleged unfair dismissal claim.
[13] In the event of the preceding
question being decided in the affirmative, I am required to condone
the delay involved and to
order costs against the respondent insofar
as it opposes the application.
Depositions and contentions for and
on behalf of the applicant
[14] The applicant deposes, inter
alia, to the effect that he referred the dispute to the CCMA
indicating that the reason for the
dismissal was unknown and the
conciliating commissioner, eventually, certified it arbitral in the
certificate of non-resolution
on 03 June 2015. He only learnt that it
was adjudicable by this Court on the 03 September 2015 when the
jurisdictional ruling was
issued at arbitration
level. He was engaged in communication with the respondent’s
mine captain from August 2015 to
and including March 2016 when it
became apparent that the talks about possible re-employment would
yield no positive results. Throughout
that period he persistently had
contact with the said mine captain with the intention to “settle”
the issues with the
respondent by re-employment failing which to
proceed with litigation. He cannot recall the exact date in March
2016 when it became
apparent that the negotiations may possibly reach
no fruition. The financial and emotional impact of the developments
relating
to his wife and himself was so great that it wore him down
with emotional distress.
[15] In argument before the court Mr
Parsons submits for the applicant, inter alia, to the effect that it
is in the interests of
justice to grant condonation in the matter
insofar as the applicant has explained the delay in full and has good
prospects of success
in his claim for unfair dismissal.
Depositions and contentions for and
on behalf of the respondent
[16] The respondent’s Employee
Relations Manager deposes, inter alia, to the effect that the
referral is 240 (two hundred
and forty) days late and not 137 (one
hundred and thirty-seven days) late as contended for the applicant.
He, further, disputes
that the applicant developed the neck pain only
in November 2015 and points out that the latter reported the same as
well as the
need for surgery to the mine captain in August 2015
already. In his view the issue did not contribute to the delay
involved.
[17] The manager, furthermore,
disputes that the discussions between the applicant and the mine
captain endured until March 2016
and deposes that the applicant was
unequivocally informed by the mine captain that there were no
prospects of re-employment at
the beginning of January 2016 and not
in March 2016.
[18] Ms Maharaj-Pillay for the
respondent party submits, inter alia, to the effect that the delay
involved is inordinate and has
not been explained adequately and
satisfactorily by the applicant. The applicant’s unfair
dismissal claim, further, enjoys
no prospects of success regard being
had to the collective agreement which was extended to non-parties
such as the applicant in
terms of section 23(1)(d) of the Labour
Relations Act (“the LRA”). AMCU, which is the majority
trade union at the relevant
workplace, and its members agreed in the
collective agreement to “[w]aive… any right to challenge
the substantive
fairness and procedural fairness as well as validity
of any termination of employment subsequent to [the consultation]
process
[ involved]”
Applicable legal position
[19]
The question
in
casu
is whether or not it
is in the interests of justice to condone the delay involved regard
being had to a balanced conspectus of
factors such as the degree of
lateness involved, its explanation and the applicant’s
prospects of success in his claim.
[1]
[20]
It is incumbent upon the
applicant for condonation to “furnish an explanation of his
default sufficiently full to enable the
court to understand how it
came about and assess his conduct and motives.”
[2]
[21]
Unacceptable explanation for
the delay renders it unnecessary for the court to consider prospects
of success in a condonation application.
[3]
[22]
Prescribed time-frames in
litigation seek to obviate inordinate delays which compromise the
interests of justice insofar as time
is the worst enemy of human
memory.
[4]
[23]
Where a final relief is sought
in motion proceedings and parties are in irreconcilable dispute over
applicable factual matrix, the
respondent-friendly test applies in
that the relief sought should be consistent with common cause and/or
undisputed facts and facts
alleged by the respondent.
[5]
[24]
Hearsay evidence is only
admissible in our courts if “a) each party against whom the
evidence is to be adduced agrees to the
admission thereof; or (b) the
person upon whose credibility the probative value of such
evidence depends, himself testifies
at such proceedings; or (c) the
court having regard to (i) the nature of the proceedings; (ii)
the nature of the evidence;
(iii) the purpose for which the evidence
is tendered; (iv) probative value of the evidence; (v) the reason why
the evidence is
not given by the person upon whose credibility
the probative value of such evidence depends; (vi) any prejudice to a
party
which the admission of such evidence might entail; (vii) any
other factor which should in the opinion of the court be taken into
account; is of the opinion that such evidence should be
admitted in the interests of justice.”
[6]
[25]
Granting condonation where no
prospects of success exist amounts to
brutum
fulmen
.
[7]
Application of legal position to
the facts and findings
[26] The parties in the instant matter
are effectively at variance on whether or not the delay has been
adequately and satisfactorily
explained with the respondent
maintaining, in effect, that the delay stretches from 03 June 2015
when the certificate of non-resolution
was issued to May 2016 when
the papers were filed.
[27] The parties are, further, in
dispute over whether or not the applicant became aware that there
existed no possibility of re-employment
in March 2016 as opposed to
the beginning of January 2016 regard being had to the delay involved
between the relevant date and
the date on which the referral to this
court was made.
[28] It is true that the 90 (ninety)
day period limited for referring disputes for arbitration and
adjudication starts running from
the date of certificate of
non-resolution and
in casu
from the 03 June 2015. It is,
therefore, correct that such a period expired on 01 September 2015 in
the instant matter. The period
of delay, thus, spans more than seven
months from 2 September 2015 to the date of filing of the statement
of claim, the first day
being 02 September 2015 inclusive and the
last day excluded.
[29] I am, however, satisfied that
good cause exists for accepting, for practical purposes, that the
applicant only became aware
of the need to refer the dispute for
adjudication on 03 September 2015 when the jurisdictional ruling was
issued. The delay involved
stretching from 02 September 2015 to and
including 90 days after the 03 September 2015
viz.
03 December
2015 can, in my view, fairly be regarded as dies non in the
calculation of the period of delay. The delay in
question is,
therefore, condonable.
[30] The question is, therefore,
whether or not the delay between 03 December 2015 and 04 May 2016
being the date on which the condonation
application was filed with
the registrar of this court
ex facie
the date stamp on the
notice of motion has been explained fully and satisfactorily.
[31] The applicant did not file any
reply in response to the respondent’s opposing affidavit. In
its opposing papers the respondent
disputes that the applicant became
aware of the deadlock in the re-employment negotiations in March 2016
and maintains that it
was at the beginning of January 2016. The
deponent on behalf of the respondent, however, has no personal
knowledge of the facts
insofar as according to him the mine captain
informed the applicant accordingly at the beginning of January 2016.
Such evidence
is hearsay and is generally not admissible as evidence
according to our law. The applicant did not consent to its admission
and
no application serves before me for its admission as effectively
contemplated by
section 3(1)(c)
of the
Law of Evidence Amendment Act
45 of 1988
. No reason is apparent from the instant application as to
why it cannot be given by the mine captain involved.
[32] The piece of evidence in question
is, therefore, inadmissible against the applicant with the
consequence that his evidence
in the relevant regard stands unrefuted
before the court. It is worth noting that it is not the applicant’s
case that there
was any agreement with the respondent that litigation
would be suspended during the relevant period. He only believed that
it was
advisable for him to give such efforts a chance.
[33] As for the delay involved between
March 2016 and the filing of the statement of claim the applicant’s
explanation is
neither admitted nor denied by the respondent which
simply points out that it has not knowledge of the major strain the
applicant
was going through as a result of the events of the previous
year and the desperate situation he found himself in. The explanation
in question is, in my view, reasonable and consonant with undisputed
events and experiences he went through during the relevant
period.
[34] The parties are, further, at odds
as to the applicant’s prospects of success in his claim for
unfair dismissal. As indicated
above the applicant did not file a
replying affidavit in response to the respondent’s opposing
papers.
[35] In the application the applicant
effectively contends that no fair procedure was followed in effecting
the dismissal and he
was not even advised of the reason for the
dismissal. He, as such, contends that the dismissal was both
procedurally and substantively
unfair.
[36] On its part, the respondent,
through its Employee Relations Manager, painstakingly contends that
the applicant is bound by
the collective agreement concluded with
AMCU on or about 11 October 2015 in terms of which AMCU and its
members waived their rights
to challenge the procedural and
substantive fairness of relevant large scale retrenchments as well as
the section 189A process
which commenced on 15 January 2013 and which
agreement was expressly extended to non-parties such as the applicant
in terms of
section23(1)(d) of the LRA.
[37] The respondent-friendly test
applies in this matter insofar as the applicant seeks a final relief
on motion in the form of
condonation.
[38]
The effect of the respondent’s
version is that the applicant has no prospects of success in his
claim whatsoever. The test
for prospects of success is, however, a
bona fide
case
which
,
though open to some doubt, carries some prospects of success
.
[8]
[39] I am in any event obliged
to apply the respondent-friendly test insofar as the dispute in this
regard is concerned. The
respondent’s version does not render
prospects reasonable. The interests of justice, in my view, are such
that to grant condonation
in the circumstances of the instant matter
would amount to
brutum fulmen
no matter how reasonable and
acceptable the explanation for the delay may be.
[40] In the result no good cause
exists for condonation.
[41] As for costs I am persuaded by
the material before me that the requirements of law and fairness cry
out for costs to follow
the result insofar as the parties prayed for
an order of costs against each other in the papers.
Order
[42] In the result:
1.
The application is dismissed with costs.
____________________
LJ
Lekale
Acting
Judge of the Labour Court of South Africa
Appearances
For the
applicant:
Mr J Parsons (Parsons Attorneys)
For the
respondent:
Advocate P Maharaj-Pillay
Instructed
by:
ENS Africa Inc.
[1]
See generally
Grootboom v National
Prosecuting Authority and Another
2014 2 SA 68
(CC) and
Chetty
v Law Society (TVL)
1985 2
SA 756
(A) at 765B-D.
[2]
See
Premium,
Western Cape v Lakay
2012
2 SA 1
(SCA) para [17].
[3]
See
GIWUSA
obo Heyneke v Klein Karoo Korporasie Bpk
[2005] ZALC 9
;
[2005] 8 BLLR 791
(LC) at para 17 and 18.
[4]
See
Mohlomi
v Minister of Defence
1997
1 SA 124
(CC) at para [11].
[5]
See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 3 SA 623 (A).
[6]
See
section 3(1)
of the
Law of Evidence Amendment Act 45 of 1988
and
PSA
of South
Africa
v Minister of Department of Home Affairs and Others
[2013] 3 BLLR 237
(LAC).
[7]
See
Rashavha
v Van Rensburg
2004
2 SA 421 (SCA).
[8]
See
Chetty
v Law Society (TVL)
s
upra.