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[2018] ZALCJHB 152
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Ngwenya and Others v Inyoni Boerdery (Edms) Bpk (JS807/17) [2018] ZALCJHB 152 (27 March 2018)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
CASE
NO: JS 807/17
In
the matter between:
VELAPHI
NGWENYA & 5 OTHERS
Applicant
and
INYONI
BOERDERY (EDMS) BPK
Respondent
Application
heard: 16 March 2018
Judgment
delivered: 27 March 2018
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to condone the late referral of a statement of
claim. The statement of claim was filed on 10 October
2017. The
applicants contend that they were dismissed by the respondent, and
that their dismissals were automatically unfair on
account of their
having made a protected disclosure. The respondent disputes that the
applicants were dismissed, and avers that
they signed a settlement
agreement on termination of their employment for reasons related to
its operational requirements.
[2]
The applicants referred an unfair dismissal dispute to the CCMA on 28
September 2015. The matter proceeded to arbitration, and
a default
award in the applicants’ favour was issued on 28 October 2015.
That award was rescinded. The matter was re-enrolled
for hearing on 8
December 2015, when the applicants were each awarded compensation
equivalent to ten months’ remuneration.
The respondent filed an
application to review and set aside the award. That application came
before this court on 12 January 2017.
The applicants say that they
were unaware of the date of the hearing. The court’s judgment
came to the applicants’
attention on 4 May 2017 when they
visited the court to ascertain what progress had been made in their
case. In its judgment, the
court upheld the review application and
set aside the award. The applicants then sought the assistance of the
pro bono
office to
make enquiries regarding the review application. It transpired that
an
ex tempore
judgment
had been delivered by the presiding judge. The basis on which the
award was set aside was that the CCMA had no jurisdiction
to
entertain the dispute, since it concerned a reason for dismissal that
is automatically unfair. The court held that the dispute
ought to
have been referred to this court for adjudication. The
pro
bono
clinic arranged for a transcription of
the judgment to be obtained, which was made available on 27 September
2017. A consultation
was arranged with the applicants and their
statement of claim was filed on 10 October 2017.
[3]
It is trite that condonation is not there merely for the asking, nor
are applications for condonation a mere formality (see
NUMSA
v Hillside Aluminium
[2005] ZALC 25
;
[2005] 6 BLLR 601
(LC);
Derrick Grootboom v National
Prosecuting Authority & another
[2013] ZACC 37).
A party seeking condonation must make out a case for
the indulgence sought and bears the onus to satisfy the court that
condonation
should be granted.
[4] This court is required to exercise
a discretion, having regard to the extent of the delay, the
explanation proffered for that
delay, the applicant’s prospects
of success, and the relative prejudice to the parties that would be
occasioned by the application
being granted or refused.
[5] In this court, that formulation,
which has its roots in
Melane v Santam Insurance Co Ltd
1962
(4) SA 531
(A), has long been qualified by the rule that where there
is an inordinate delay that is not satisfactorily explained, the
applicant’s
prospects of success are immaterial. In
National
Union of Mineworkers v Council for Mineral Technology
[1999] 3
BLLR 209
(LAC) the LAC said the following:
…
without
a reasonable and acceptable explanation for the delay, the prospects
of success are immaterial, and without prospects of
success, no
matter how good the explanation for the delay, an application for
condonation should be refused.
[6] None of the factors referred to
above are in themselves definitive – the court must necessarily
take into account all
of the relevant facts and circumstances and
exercise a discretion. In the present instance, the applicants have
displayed a degree
of diligence in pursuing their interests. The
delay in filing the statement of claim is attributable directly to
the outcome of
the review application and in particular, the need to
obtain and transcribe the
ex tempore
judgement delivered by
the court. The statement of claim was filed within a reasonable time
after the transcribed judgement was
made available to the applicants,
and the jurisdictional implications of the nature of their claim
explained to them. The applicants
have been diligent throughout in
pursuing their claim, and it was through no fault of their own that
the matter was referred to
arbitration and not to this court.
Although the delay in referring the matter for adjudication is not
inconsiderable, in my view,
the reasons for the delay and the
explanation proffered by the applicants provide a compelling reason
to grant condonation. In
so far as the prospect of success are
concerned, these are at best a neutral factor given that there is a
dispute between the parties
as to the nature of the applicants’
employment, whether they were dismissed at all, whether they were
provided with protective
clothing, and whether the reason for their
dismissal was the termination of their fixed term contracts or a
reason related to a
labour inspection conducted on the respondent’s
farm. These are matters that are best determined by way of evidence
in a
trial and this court is not in a position to find, on the
pleadings and the papers before it, that the prospects of success are
either so overwhelming or so insignificant so as to determine this
application one way or the other.
[7] Finally, the prejudice to the
applicants should they be precluded from pursuing their case clearly
outweighs any prejudice that
the respondent might suffer by being
called upon to defend its case at trial. The applicants have pursued
their interests with
diligence in spite of the challenges of distance
and their limited access to expertise in a case that raises complex
legal issues.
They do not deserve to have the doors of the court
closed to them.
[8] For the above reasons, in my view,
the applicants have made out a case for condonation.
I make the following order:
1.
The late filing of the applicants’
statement of claim is condoned.
André van Niekerk
Judge
REPRESENTATION
For the applicants: In person
For the Respondent: Adv. ASL van Wyk,
instructed by Seymore Du Toit Basson Attorneys.