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[2018] ZALCJHB 128
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SACWU obo Ndlozi v Karbochem (Pty) Ltd (JS438/10) [2018] ZALCJHB 128 (20 March 2018)
IN THE LABOUR COURT OF SOUTH
AFRICA, JOHANNESBURG
Not Reportable
Not of interest to other judges
Case no: JS 438/10
In
the matter between:
SACWU
obo PETER NDLOZI
Applicant
And
KARBOCHEM
(PTY) LTD
Respondent
Heard:
02 March 2018
Delivered:
20 March 2018
Summary:
Practice and procedure: Condonation application – Inadequate
explanation of delay in delivering statement of claim
–
Excessive delay involved – Respondent-friendly test applicable
as to prospects of success – Not even necessary
to consider
prospects of success – Condonation not in interests of justice.
JUDGMENT
LEKALE, AJ
Background and introduction
[1] The applicant’s member was
employed by the respondent at its Newcastle plant until 30 November
2009 when he was dismissed
following a disciplinary enquiry into
allegations of creating a hostile environment at the workplace
levelled against him.
[2] The applicant’s member felt
aggrieved by his dismissal, which he viewed as a form of
victimisation in the light of the
grievance he had lodged, and
referred the dispute to the bargaining council having jurisdiction
for resolution.
[3] The matter remained unresolved
after an attempt at conciliation made on 25 January 2010 and was,
eventually, ruled adjudicable
by this Court at arbitration level
following a preliminary point of lack of jurisdiction raised by the
respondent.
[4] The parties, thereafter, concluded
an agreement in terms of which the respondent,
inter alia
,
undertook not to oppose the applicant’s application for
condonation of the late referral of the dispute to the court on
condition that the referral was delivered not later than 02 June
2010.
[5] The referral was, however, only
delivered more than three years after the agreed date on 16 August
2013 although it was,
ex facie
the same, signed on 01 June
2010.
[6] The respondent filed a special
plea on 30 August 2013 to the effect that the referral was filed out
of time and was not accompanied
by an application for condonation.
[7] The applicant subsequently filed
an application for condonation for the late referral on or about 20
May 2016 and more than
five years after the date of the certificate
of non-resolution.
[8] The applicant, further, applies
for condonation of the late delivery of the condonation application
itself as the first prayer
in the Notice of Motion.
[9] This is, therefore, first an
application for condonation of the late delivery of the condonation
application and secondly an
application for condonation of the late
filing of the statement of claim.
Issues for determination
[10] The parties are
ante omnia
at
variance on whether or not good cause exists for condonation of the
late application for condonation of the late delivery of
the
statement of claim.
[11] In the event of the preceding
question being decided in the affirmative, then and only in that
eventuality I am enjoined to
determine whether or not good cause
exists for condonation of the late delivery of the applicant’s
statement of claim.
Depositions and contentions for the
applicant
[12] The applicant’s member,
Peter Ndlozi, deposes,
inter alia
, to the effect that during
or about the latter part of October 2014 he travelled to the
applicant’s main office in Johannesburg
to enquire after
progress in the matter and it was the first time the applicant’s
General Secretary (“GS”) became
aware of the same as the
employment of the previous GS, who was handling the same, was said to
have been terminated during or about
December 2013. The new GS
searched in vain for the file and eventually procured a copy of the
court file on or about 28 October
2014. The applicant’s
attorneys of record were, thereafter, instructed and consultation
with counsel took place on 04 December
2014. Counsel, thereafter
presented his quote for professional services to be rendered. The
applicant lacked the required funds
and only accepted the quote on or
about 23 February 2015. Counsel could, however, not commence work due
to previously arranged
commitments until about 31 March 2015 and 26
April 2015 when he settled the notice of amendment and the
condonation application,
respectively.
[13] He was not in a financial
position to instruct his own legal representatives and it would,
further, not have been cost effective
for the applicant to brief
another counsel who would, in any event, have had to qualify himself
by familiarising himself with the
matter which would have resulted in
duplication of legal costs for the applicant. He and the GS do not
know why the statement of
claim was not delivered timeously when it
was signed on 01 June 2010. He has excellent prospects of success as
the respondent was
not entitled to dismiss him. The matter is of
outmost importance to him and the court should take the opportunity
to send a strong
message to employers not to victimise employees for
exercising their rights. He is an experienced employee and it would
be to the
respondent’s advantage to re-employ him. The
injustice committed against him outweighs by far the respondent’s
interest
in finality.
[14] In argument before the court Ms
Mosala concedes that the referral is extremely late but submits,
inter alia,
that none of the remissness involved is
attributable to the applicant’s member who genuinely believed
that the applicant’s
erstwhile GS was handling the matter
properly.
Depositions and contentions for and
on behalf of the respondent party
[15] The respondent’s Human
Capital Specialist deposes,
inter alia,
to the effect that
incidents leading to the dismissal of the applicant’s member
date as far back as 2004 and the respondent
has been prejudiced in
its ability to plead to the allegations. The applicant should, in
law, have applied for condonation as soon
as it realised that it was
out of time. In the instant matter the delay involved is inordinate
and there exists no full and proper
explanation for the same. The
applicant’s member has simply no prospects of success in his
claim.
[16] Mr Buirski submits on paper and
in argument before the court,
inter alia,
to the effect that
there is no adequate and acceptable explanation for the delay in
applying for condonation and in filing the statement
of claim late.
There is, as such, no reason for the court to consider prospects of
success in the circumstances according to case
law. Even if such an
exercise is undertaken it is clear from the respondent’s
opposing papers that there is no reason to
believe that the applicant
has any prospects of success in his claim.
Applicable legal position
[17]
The test in the instant matter
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, prospects
of success, prejudice to
the respondent and importance of the matter
to the applicant.
[1]
[18]
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
really came about and to assess its conduct and motives”.
[2]
[19]
“Condonation must be
applied for as soon as the party concerned realises that it is
required.”
[3]
[20]
An inadequate or unacceptable
explanation for the delay renders it unnecessary for a court to
consider prospects of success in a
condonation application.
[4]
[21]
Prescribed time limits in
litigation seek to obviate inordinate delays that compromise
the interests of justice insofar as
time is the worst enemy of human
memory.
[5]
[22]
Where a final relief is sought
in motion proceedings and an irreconcilable factual dispute
exists a 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.
[6]
Application of legal position to
the facts and findings
[23] The parties are correctly
ad
idem
that the delays involved are inordinate and in respect of
the filing of the statement of claim spans multiple years while in
the
case of application for condonation endured for more than one and
half years.
[24] The delay involved in applying
for condonation is effectively attributed by the applicant to its
erstwhile attorneys whose
member has reported to the law society for
discipline.
[25] I am persuaded by the facts
relating to the delay in applying for condonation after the
respondent filed a special plea that
none of the remissness is
attributable to the applicant’s member who indisputably stays
in Kwazulu Natal and has irregular
income. He reasonably expected the
lawyers to do the necessary after the delay in referring the dispute
to the court for adjudication
was discovered. In my view it is in the
interests of justice to condone the delay in that regard.
[26] As far as the delay in referring
the matter to court is concerned there is simply a glaring lacuna in
the explanation of the
same with the applicant effectively lifting
its shoulders and throwing its hands in despair pointing out that it
does not know
why the referral was not made timeously. The
application is simply silent on the efforts, if any, made to
establish the facts underlying
the default in question. Nothing is
apparent
ex facie
the application with regard to the
whereabouts of the applicant’s erstwhile GS who was responsible
for handling the matter
at the time when the referral was supposed to
be made. The delay in question is extremely excessive and unaccounted
for. The applicant’s
member is also not without any fault
insofar as he contributed to the delay by not keeping contact with
the applicant’s office
for more than four years after the date
on which the referral was supposed to be made. Being a shop steward
he is reasonably expected
to have been aware of time limits involved
and to have kept the applicant’s office on its toes. In my view
had he kept reasonable
contact with the applicant the default would
have either been avoided or discovered within a
reasonable time.
[27] A balanced conspectus of the
relevant factors indicates that it is not in the interests of justice
to grant condonation
in casu
regard being had to the
respondent-friendly test applicable in motion proceedings where a
final relief is sought and facts are
irreconcilably in dispute. The
respondent disputes intensely that the applicant’s member has
good prospects of success in
his claim for victimisation and grapples
with the facts in that regard.
[28] The requirements of law and
fairness cry out for costs to follow the event in the present matter
regard being had,
inter alia
, to excessive delay involved and
the fact that the parties prayed for a costs order against each other
in the papers.
Order
[29] In the result I make the
following order:
1.
The application for condonation of the late filing of the condonation
application
is condoned without an order as to costs;
2.
The application for condonation of the late filing of the statement
of claim
is dismissed with costs.
____________________
LJ
Lekale
Acting
Judge of the Labour Court of South Africa
Appearances
For the
applicant:
Adv Mosala
Instructed
by:
Matlatle Attorneys
For the
respondent:
Adv P Buirski
Instructed
by:
Salijee Govender Van der Merwe 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]
S
ee
Premium, Western Cape v
Lakay
2012 2 SA 1
(SCA)
para [17].
[3]
See
Minister
of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
2010 4 SA 109
(SCA) para [39] and
Arnott
v Kunene Solutions and Services (Pty) Ltd
[2002] 8 BLLR 722
(LC) at para 34.
[4]
See
GIWUSA
obo Heyneke v Klein Karoo Korporasie Bpk
[2005] ZALC 9
;
[2005] 8 BLLR 791
(LC) at paras 17 and 18 and
Grootboom
v National Prosecuting Authority and Another
supra.
[5]
See
Mohlomi
v Minister of Defence
1997
1 SA 124
(CC) at para [11].
[6]
See
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 3 SA 623
(A).