About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 160
|
|
Passenger Rail Agency South Africa v Commission for Conciliation, Mediation and Arbitration and Others (JR137/2015) [2018] ZALCJHB 160 (26 April 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 137/2015
In
the matter between:
PASSENGER
RAIL AGENCY SOUTH AFRICA
Applicant
And
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
BONGANI KHUMALO N.O
Second Respondent
MOHLALA
M.M
Third Respondent
SATAWU
Fourth Respondent
Heard:
8 June 2017
Delivered:
26 April 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction
and background:
[1]
The third and fourth respondents seek condonation for the late filing
of an answering affidavit to the applicant’s application
to
review and set aside the arbitration award issued by the second
respondent dated 8 December 2014.
[2]
The review application was filed on 26 January 2015. On 21 August
2015, the applicant (PRASA) filed notices in terms of Rule
7A (6) &
7A (8) (b) (b) the Rules of this Court, indicating that it stood by
its Notice of Motion.
[3]
In terms of Rule 7A (9), the third and fourth respondents ought to
have delivered their answering affidavit on or about 4 September
2015. They only did so on 16 February 2017. The delay in delivering
the answering affidavit is about 17 months. On 16 February
2017,
PRASA delivered an objection in terms of clause 11.4.2 of the
Practice Manual read with Rule 7A (9) of the Rules of this
Court,
leading to the filing of the present application for condonation.
[4]
A brief background to the dispute between the parties is important in
order to contextualise the application before the Court.
The dispute
arose sometime in September 2011 after the third respondent and other
candidates had applied for the advertised post
of Financial
Accountant. After a protracted process of short-listing flowing from
about 18 applications, the third respondent’s
complaint is that
she was not short-listed as she did not have the required B Com
(Accounting) and at least three years relevant
experience as a
Financial Accountant. The successful candidate was appointed from
three others who were shortlisted, and had commenced
his employment
in January 2012.
[5]
The third respondent had lodged an appeal against the appointment of
the successful candidate, contending that PRASA’s
recruitment
and selection policy gave first preference to internal candidates,
the failure to appoint her essentially involved
non-compliance with
company recruitment and selection policies. When the grievance was
not resolved, she had then referred a dispute
to the CCMA.
[6]
Conciliation having failed, the alleged unfair labour practice
dispute related to the failure to promote and appoint was then
referred for arbitration. On 8 December 2014, an award was issued by
the second respondent (Commissioner) in favour of the third
respondent in terms of which it was found that PRASA had committed an
unfair labour practice related to promotion. The Commissioner
ordered
a protective promotion to the third respondent and further ordered
that she be paid compensation in the amount of R486 662.00.
It
is that award that PRASA seeks to review and set aside.
Condonation
and evaluation:
[7]
The factors applicable when
considering applications for condonation are well-known as elucidated
in
Melane v Santam Co Ltd
[1]
as follows;
“
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 therefor, the prospects of
success, and the importance of the case. Ordinarily these
facts are
interrelated: they are not individually decisive, for that would be a
piecemeal approach incompatible with a true discretion,
save of
course that if there are no prospects of success there would be no
point in granting condonation. Any attempt to formulate
a rule of
thumb would only serve to harden the arteries of what should be a
flexible discretion. What is needed is an objective
conspectus of all
the facts. Thus, a slight delay and a good explanation may help to
compensate for prospects of success which
are not strong. Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the
respondent’s interest in
finality must not be overlooked. I would add that discursiveness
should be discouraged in canvassing
the prospects of success in the
affidavits. I think that all the foregoing clearly emerge from
decisions of this Court, and therefore
I need not add to the
ever-growing burden of annotations by citing the cases.”
[8]
In
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others,
it
was held that it was appropriate that an application for condonation
be considered and granted if that is in the interests of
justice and
refused if it is not. The interests of justice must be determined by
reference to all relevant factors including the
nature of the relief
sought, the extent and cause of the delay, the nature and cause of
any other defect in respect of which condonation
is sought, the
effect on the administration of justice, prejudice and the
reasonableness of the applicant’s explanation for
the delay or
defect
[2]
.
To that end, it is accepted that the interests of justice is not a
self-standing factor to be taken into account.
[9]
In this case, the delay in
filing the answering affidavit is excessive in the extreme, and this
required of the third and fourth
respondents to furnish a reasonable
and acceptable explanation for each period of the delay. In the
absence of a reasonable or
plausible explanation for that delay, the
Court would then be hard-pressed to deal with other factors
applicable to such applications
[3]
.
[10]
The third and fourth respondents in the founding affidavit deposed to
by SATAWU’s Legal Officer and its representative
in these
proceedings, Mr Bareng Mokoena averred the following;
[11]
Upon the filing of the review application, the parties have been
engaged in settlement discussions, and the third respondent
had
‘relaxed’ and was under the impression that the matter
would be settled and the review application withdrawn. In
this
regard, reliance is placed on;
a)
The appointment of the third respondent into the position of
Assistant Manager on 24 June 2015. Despite the appointment, the third
respondent was nonetheless not allowed to assume that position
as the
appointment letter was not signed and further since other conditions
of employment had not been finalised.
b)
An e-mail was sent by the third respondent on 5 November 2015
to
Makhubela, the PRASA’s ER Manager in respect of the offer made.
c)
A letter sent to PRASA by SATAWU’s Provincial Office on
7
November 2016 to request a meeting to discuss the third respondent’s
appointment
d)
A further letter sent by SATAWU to PRASA on 1 February 2017
to follow
up on the discussions held in November 2016 regarding the third
respondent’s matter.
e)
An e-mail sent by the third respondent on 7 February 2017 to
PRASA’s
Acting Provincial Manager in regards to the settlement of the matter
and the withdrawal of the review application.
f)
An e-mail on 7 February 2017 sent by the Acting Provincial
Manager to
the acting HR HOD to investigate the third respondent’s matter
so that it can be closed
[12]
The third and fourth respondents contend the above indicates that at
all material times, attempts were made by the parties
to have the
matter resolved, and as a consequence of a change of leadership in
the Gauteng provincial Management, the settlement
discussions were
interrupted.
[13]
PRASA’s starting point in opposing the application for
condonation was that the allegations made by Mokoena in the founding
affidavit constituted inadmissible hearsay as he was not party to any
discussions surrounding settlement proposals. This was in
circumstances where the third respondent had not filed a confirmatory
affidavit at the time that the founding affidavit was filed.
She had
only filed the confirmatory affidavit and that of SATAWU’s
official Booi on 30 March 2017, together with her replying
affidavit.
In her replying affidavit, she contended that she and Booi had been
involved in the settlement discussions and had fully
appraised
Mokoena for the purposes of the founding affidavit.
[14]
The difficulty however with the belated confirmatory affidavits is
that a case cannot be made out in the replying affidavit,
and to the
extent that the confirmatory affidavit was not filed simultaneously
with the founding affidavit, the averments made
therein remain
inadmissible hearsay as correctly pointed out on behalf of PRASA.
[15]
Notwithstanding the above, PRASA further takes issue with the
explanation proffered for the delay, contending that the third
and
fourth respondents have not shown good cause and/or sufficient cause
as to why the answering affidavit was filed some 17 months
out of
time in circumstances where;
a)
There was no agreement between the parties to hold the proceedings
in
abeyance when settlement discussions were continuing, and where the
third and fourth respondents were aware that the dispute
might not be
settled.
b)
The settlement discussions commenced in June 2015 but the third
respondent was not prepared to accept the offer by PRASA. It was
therefore apparent that the parties were far apart from reaching
settlement when the third respondent made a counter offer that was
unacceptable to PRASA.
c)
The Rule 7A (6) & 7A (8) notices were delivered on 21 August
2015, and it was apparent to the third and fourth respondents that
PRASA was pursuing the review application
d)
The third and fourth respondents neglected to deliver an answering
affidavit or make a request to have the matter held in abeyance
pending any settlement discussions
e)
The third and fourth respondents’ alleged impression that
the
matter could be settled and the review application withdrawn in the
absence of an agreement being reached over 17 months was
unreasonable
and unrealistic
f)
A firm and signed offer of appointment as Assistant Manager
was made
to the third respondent on 24 June 2015, which she had rejected it as
she was unhappy with her salary package. In November
2015, the third
respondent was advised that her counter offer was not acceptable, and
it was therefore apparent that no settlement
would be reached
[16]
As already indicated, in instances where a delay in complying with
prescribed time limits is extreme as in this case, there
is an even
onerous obligation on the defaulting party to give a full account of
all periods of the delay. In this case, it appears
to be common cause
that settlement discussions took place, resulting in the offer of
employment on 24 June 2015. Once the Rule
7A (6) & 7A (8) notices
were delivered on 21 August 2015, it should have become apparent to
the third and fourth respondents
that PRASA was serious in pursuing
the review application.
[17]
Significant with the third respondent’s averments in the
replying affidavit is that despite it being contended in the
answering affidavit to the condonation application that no good cause
had been shown for the delay, she further proceeded to implore
the
court to take notice that she and her union official, Booi are
laypersons and do not understand processes of this court. Obviously
this excuse was never proffered in the founding affidavit and even if
it were to be considered, it is indeed lame in the extreme.
A
litigant assisted by a large union like SATAWU cannot claim to have
no knowledge of Court processes, and that excuse ought to
be
rejected.
[18]
The third respondent’s further contentions that an impression
was created that the matter would be settled and the review
application be withdrawn is further without merit. Since the offer
and appointment were made in June 2015, and further since she
was
advised in November 2015 that her counter offer was not acceptable,
there is nothing placed before the Court to indicate that
settlement discussions had continued in earnest. The only evidence of
any form of discussions is correspondence of 5 November 2015
that the
third respondent relied upon. Other than that correspondence, there
is no explanation as to what caused the delay between
November 2015
and November 2016 when Booi sent correspondence to request a meeting
with PARSA. A whole year remains unexplained.
It was only in February
2017 when Booi sent correspondence to PRSA following upon the matter,
and by then, the matter had been
set down for pre-enrolment before
this Court. It took the pre-enrolment hearing and a court order on 17
February 2017 to have the
third and fourth respondents file and serve
their answering affidavit and this condonation application.
[19]
In the light of the above circumstances, I have no hesitation in
concluding that this is a matter where the explanation in
regard to
the excessive delay in essence amounts to no explanation at all. The
allegation that the third and fourth respondents
were lured into
settlement discussions and then given an impression that the matter
would be resolved is unsustainable.
[20]
It was submitted on behalf of the third respondent that the interests
of justice and speedy resolution of disputes dictated
that they be
allowed to oppose the review application. I nonetheless do not share
that view, as it is the third and fourth respondents
that are the
sole cause of a delay in the speedy resolution of the matter.
[21]
In circumstances where the delay is excessive and no reasonable
or acceptable explanation had been proffered, that would
ordinarily
be the end of the matter. This case however is not ordinary in that
PRASA seeks to review and set aside an award issued
in favour of the
third respondent. The question is whether it would be in the
interests of justice to deny her an opportunity to
defend an award in
her favour. This is so in that if condonation was to be denied, she
would not be in a position to defend her
favourable award.
[22]
In contending that the third respondent had reasonable prospects of
success in the review application, it was averred that
PRASA did not
have a case, and that its grounds of review were unsustainable. On
the same issue, it was submitted on behalf of
PRASA that even if the
Commissioner had reached a reasonable decision in the award, and the
evidence indicated that the third respondent
was denied an
opportunity to compete, and not to be appointed, at best, the
Commissioner could have awarded relief by way of a
solatium
instead of protective promotion.
[23]
I have already concluded that the explanation for the excessive delay
was not acceptable or reasonable. Notwithstanding, it
is my
view that upon a consideration of the interests of justice,
encompassing the third and fourth respondents’ prospects
of
success; PRASA’s own averments in regards to the possibility of
some relief being granted to the third respondent by an
arbitrator;
the endeavours of the parties in attempting to resolve the matter
(
albeit
those attempts were not sustained); and the prejudice
the third respondent would suffer if she is not afforded an
opportunity to
defend an award in her favour, (as opposed to the
failure of PRASA to address the aspect of prejudice), a discretion
should be
exercised in the third and fourth respondents’
favour, and condonation ought to be granted.
[24]
The granting of condonation nonetheless comes at a price. The third
and fourth respondents had clearly been remiss and negligent
in not
delivering the answering affidavit when required to do so, compelling
PRASA to file an objection in terms of clause 11.4.2
of this court’s
Practice Manual read with Rule 7 (5) (a) of the Rules of this Court.
PRASA as a consequence of the third
and fourth respondents’
dilatoriness was also compelled to oppose the condonation application
in circumstances which the
third and fourth respondents could have
avoided. In the circumstances, considerations of law and fairness
dictate that the fourth
respondent be burdened with the costs of this
application. Accordingly, the following order is made;
Order:
1.
The late filing of the third and fourth respondents’ answering
affidavit
to the applicant’s review application is condoned.
2.
The review application is to be set-down for a hearing on the opposed
motion
court roll on notice to both parties.
3.
The fourth respondent is ordered to pay the costs of this
application.
_______________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants (Condonation application):
Mr. B Mokoena, SATAWU Official
For
the Respondent (Condonation application): Mr
P Mosebo of Werkmans Attorneys
[1]
1962 (4) SA 531
(A)
at
532B-E.
[2]
[2000] ZACC 3
;
2000 (5) BCLR 465
;
2000 (2) SA 837
(CC) at para 3. See also
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae
[2007] ZACC
24
;
2008 (2) SA 472(CC)
;
2008 (4) BCLR 442(CC)
at para 20
.
[3]
See
NUM v Council for
Mineral Technology
[1999]
3 BLLR 209
(LAC) at para 10, where it was held that;
“…
The
approach 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 importance of the case. These facts are
interrelated: they are not individually decisive. What
is needed is
an objective conspectus of all the facts. A slight delay and a good
explanation may help to compensate for prospects
of success which
are not strong. The importance of the issue and strong prospects of
success may tend to compensate for a long
delay. There is a further
principle which is applied and that is that 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…”