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[2018] ZALCJHB 200
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SATAWU obo Mathiso and Others v Pride Bulk Logistics (Pty) Ltd (JS769/15) [2018] ZALCJHB 200 (22 May 2018)
Of
interest to other Judges
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT JOHANNESBURG
Case no: JS 769/15
In
the matter between:
SATAWU obo MATHISO
J & 34 OTHERS
Applicants
and
PRIDE
BULK LOGISTICS (PTY) LTD
Respondent
Heard
:
18 May 2018
Delivered
:
22 May 2018
Summary:
(Condonation application – excessively late – employees
faith in union not justified beyond
a certain point – remainder
of delay lacking an adequate explanation – inadequate
explanation sufficient for refusing
condonation – even if
reasonable prospects considered, insufficient to outweigh delay, when
it could have been easily avoided
by more prompt action – in
passing, whether strike to obtain closed shop agreement can only
proceed if requirements of s
26(3) of the LRA met – negligence
of union not attributable to members by virtue of membership
relationship)
JUDGMENT
LAGRANGE
J
Background
[1]
This is an application for condonation for the late referral of a
statement of claim. Although SATAWU is still cited as acting
in a
representative capacity on behalf of the individual applicants, that
is simply an incident of the original case citation.
As will become
apparent from the narrative below, the union has long abandoned the
individual applicants who reasonably expected
it to act on their
behalf.
[2]
The applicants claim they were dismissed in consequence of allegedly
participating in an unprotected strike, failure to comply
with
ultimatums to return to work and other unlawful conduct committed in
the course of the strike. The employer (‘Pride
Bulk’)
claims they were only dismissed for failing to comply with ultimatums
and the other misconduct. Pride Bulk claims
it did not find them
guilty of participating in an unprotected strike, not because it
accepted that the strike was protected, but
because it accepted that
the union members acted on the advice of SATAWU’s advice that
it was a protected strike. The strike
appears to have been in support
of a demand to conclude a closed shop agreement.
Period
of delay:
[3]
The
applicants were dismissed on 28 May 2015 and referred the unfair
dismissal dispute to the bargaining council the following day,
29 May
2015. The dispute was unsuccessfully conciliated on 29 June 2015.
Accordingly, it should have been referred to the court
within 90 days
of that date, namely 27 September 2015, in terms of the judgement in
F &
J Electrical CC v MEWUSA obo E Mashatola and others
,
in which the Constitutional Court made it clear that the 90 day
period runs from the date on which the certificate of outcome
is
issued.
[1]
[4]
As frequently happens in a case where the protected status of a
strike is in dispute, the applicants requested arbitration but
on 9
September 2015, the arbitrator declined to hear the matter on the
basis that the council did not have jurisdiction. The features
he
identified about the dispute which led him to that conclusion was the
fact that there was a strike and that at least part of
the reason the
applicants were dismissed was for failing to comply with ultimatums
to return to work. At the time of the jurisdictional
ruling, the
applicants still had a couple of weeks to refer the dispute before
the 90 day period expired.
[5]
However, the dispute was only referred to court in March 2018, nearly
two and a half years after the expiry of the 90 day period
which made
the referral exceptionally late.
The
explanation for the delay:
[6]
Initially, SATAWU appointed Seleka Attorneys (‘Seleka’)
to act on behalf of applicants and a case number was obtained
on or
about 7 October 2015. If the referral had been made shortly
thereafter, the delay would have been minimal.
[7]
A former shop steward and one of the individual applicants, Mr J
Mathiso (‘Mathiso’), deposed to the affidavit in
support
of the condonation application. He claims that he regularly followed
up with the responsible organiser, Mr F Dabula (‘Dabula’),
who assured him that the matter was in hand and the applicants
believed that it had been referred to the Labour Court. Subsequently,
the organiser became increasingly difficult to contact and provided
various explanations for the lack of progress promising frequently
to
revert to the applicants.
[8]
In mid-2016, Mathiso was advised by Dabula that, there was a
‘misprint’ on the court documents and that the court
had
sent the documents back to attorneys. Mathiso was rightly suspicious
about this explanation and questioned the organiser further.
At that
point, it turned out that the union had not paid Seleka’s fees
and there was also an internal dispute in the union.
Mathiso then
requested the case documents so that the employees could arrange
their own representation but was only successful
in getting them
towards the end of 2016. He was advised that the union was attempting
to find alternative representation but it
was too expensive. The
deponent informed the organiser he expected to see progress by the
end of February 2017 and was under the
impression that the matter was
under control.
[9]
He claims he attempted to find another attorney but was unsuccessful
and he was also concerned about the potential costs because
Dabula
had mentioned that a sum of R100, 000 was required, which the
individual applicants did not have. He further claims that
the
organiser continued to send him from pillar to post. He also then
tried to make contact with the Deputy General Secretary but
never got
beyond his personal assistant. It was in August 2017 that an advocate
assisted him and made enquiries on behalf of the
applicants at the
Springs local office and provincial offices of Satawu. Mathiso
mentions that, after further investigations it
turned out that Seleka
had never been paid, by which I assume he meant that Seleka had still
not been paid, as they already knew
in 2016 that this was the case.
It was only at the end of January 2017 that they eventually met their
current attorney of record,
Mr D Morgan, who agreed to act for them
on a
pro bono
.
[10]
Pride Bulk obviously has no direct knowledge of the internal
communications between the applicants, their union and Seleka,
but
points out that extensive delay is severely lacking in detail and for
that reason alone condonation should be refused.
Prospects
of success
[11]
The applicants argue that their strike was lawful and therefore their
dismissals were impermissible. Pride Bulk emphasised
that the failure
to heed the ultimatum was not the only reason for dismissal as they
allegedly committed other misconduct while
on strike that also
justified their dismissal.
Evaluation:
[12]
A delay of two and a half years beyond the 90 day period is extremely
long. I accept that employees are entitled to place a
certain amount
of faith in the organisation that is supposed to represent them in
such matters. However, it is obvious even from
Mathiso’s
explanation for the delay that by the end of 2016, the applicants
knew that Seleka had not been paid and that the
union was not
optimistic about obtaining alternative representation as it claimed
it did not have the funds to pursue the matter.
He also knew that
Dabula had misled them previously. Added to this there was an
internal dispute within the union, which evidently
complicated the
prosecution of the court proceedings. They also had Seleka’s
draft statement of case in their possession
by that time.
[13]
This state of affairs at the end of 2016 was a clear indication that
the union had deceived them and that there were more obstacles
to
SATAWU assisting them than any promising signs that the situation
would turn around. By then, they had every reason to doubt
the
union’s will or ability to pursue their case and their abiding
patience in the face of the union’s utter neglect
in handling
their matter was unreasonable even for lay persons. They ought to
have started to take steps to obtain independent
representation or to
refer the case themselves at that stage. It is true that Mathiso told
Dabula that he expected to see progress
by the end of February 2017,
but nothing in his affidavit suggests Dabula had given him any reason
to believe the situation would
change.
[14]
It is a well-established principle that there is a point beyond which
an applicant cannot blame delays purely on the failure
of their
representatives to act promptly. See :
“
[18]
As has often been stated the court is hesitant to debar a litigant
from relief, particularly where it is his attorney who has
been at
fault: Meintjies's case at 264A; Saloojee's case at 140H-141A;
Reinecke v IGI Ltd
1974 (2) SA 84
(A) at 92F-H. There are limits,
however, even where the attorney is largely to blame for the delay,
beyond which the courts are
not prepared to assist an appellant. The
remarks made in Saloojee & another v Minister of Community
Development at 141C-E by
Steyn CJ bear repeating again:
'I
should point out, however, that it has not at any time been held that
condonation will not in any circumstances be withheld if
the blame
lies with the attorney. There is a limit beyond which a litigant
cannot escape the results of his attorney's lack of
diligence or the
insufficiency of the explanation tendered. To hold otherwise might
have a disastrous effect upon the observance
of the Rules of this
court. Considerations ad misericordiam should not be allowed to
become an invitation to laxity. In fact this
court has lately been
burdened with an undue and increasing number of applications for
condonation in which the failure to comply
with the Rules of this
Court was due to neglect on the part of the attorney. The attorney,
after all, is the representative whom
the litigant has chosen for
himself, and there is little reason why, in regard to condonation of
a failure to comply with a Rule
of Court, the litigant should be
absolved from the normal consequences of such a relationship, no
matter what the circumstances
of the failure are.'
[19]
It is also important to remember what was said in Commissioner for
Inland Revenue v Burger
1956 (4) SA 446
(A) at 449G where Centlivres
CJ remarked that: 'Whenever an appellant realizes that he has not
complied with a Rule of Court he
should, without delay, apply for
condonation .' It is now four and a half I years since the
respondents were dismissed for operational
reasons.
[20]
The Supreme Court of Appeal has pointed out that an unacceptable
explanation remains just that, whatever the prospects of success
on
the merits. Chetty v Law Society, Transvaal
1985 (2) SA 756
(A) at
768B-C.
In
this instance I believe that point was reached at the very latest at
the end of 2016 but it took clearly applicants another eight
months
before they obtained independent assistance.”
[15]
In
Seatlolo & others v Entertainment Logistics Service (A
Division of Gallo Africa Ltd)
, the Labour Court said the
following in a case where there had been a delay of over two years on
the part of a union:
“
[25]
I am cognizant of Mr Boda's plea that the doors of justice should
remain open to litigants who are laypersons and reliant solely
on
their union and who genuinely believed they were in safe hands.
However, there are at the same time limits beyond which the
doors of
justice cannot but be closed - in these circumstances where they
themselves are to blame for not holding their union accountable
and
where the Act is premised on expedition and the employer is likely to
be prejudiced by permitting the matter to proceed on
the merits. The
applicants are in any event not entirely bereft of a remedy in that
civil proceedings in delict may still be available
to them.”
[2]
[16]
I agree
with the principle enunciated above. However, that judgment went
further in stating that the situation of union members
is even more
dire than a client who relies on the negligence of his attorneys to
excuse his delay, because “(i)t is a collective
embodiment of
its members and is akin to a curator at litem in civil proceedings -
in other words, it is 'the institutional embodiment
of the several
members involved in the dispute’ ”.
[3]
[17]
While union members have a reasonable expectation that their union
ought to assist them, within its means, when they are dismissed
in
consequence of a strike the union supported, I do not think the
membership relationship is of such a nature that the negligence
of
the union ought to be imputed to the members simply by virtue of them
being members rather than clients of the union. In this
regard, I
respectfully differ with the judgment in
Seatlolo
and other
judgments which have followed this approach. I believe the real
inquiry is whether, as union members, individual applicants
have good
reason to believe their matter is being prosecuted reasonably
diligently by their union, in much the same way a client’s
understanding of their attorney’s conduct would be assessed,
albeit that there may be factual differences in how accessible
a
particular union is to its members relative to the how accessible an
attorney is. However, these are factual issues which will
differ from
case to case.
[18]
In
Seatlolo
, the union had pursued the dismissal dispute, but
had adopted a strategy they were warned would fail. In this
case, SATAWU
simply did nothing after it failed to pay the attorney,
though nothing prevented it from referring the case even if it was
already
late, and applying to amend the statement of case if
necessary. On the face of it, the union’s negligence appears to
have
cost the individual applicants a reasonable chance of
successfully challenging their dismissals as automatically unfair, as
discussed
below. However, that does not make the applicants blameless
in waiting on SATAWU to act, once they knew what they did by the end
of 2016. There is no reasonable explanation why they continued
to have any faith in the union beyond that point, which had
shown
itself to be useless and deceptive in its handling of their case
referral. In effect, their explanation for only taking further
steps
in August 2017 and then not acting with the greatest speed thereafter
renders their explanation for a major part of the delay
unacceptable.
In my view, that is sufficient reason to refuse condonation,
irrespective of the merits in line with the often repeated
principle,
recently restated by the LAC in
Colett v Commission for
Conciliation, Mediation & Arbitration & others
:
“
[38]
There are overwhelming precedents in this court, the Supreme Court of
Appeal and the Constitutional Court for the proposition
I that where
there is a flagrant or gross failure to comply with the rules of
court condonation may be refused without considering
the prospects of
success. In NUM v Council for Mineral Technology it was pointed
out that in considering whether good cause
has been shown the
well-known approach adopted in Melane v Santam Insurance Co Ltd
1962
(4) SA 531
(A) at 532C-D should be followed, but —
'[t]here
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 good prospects of success, no
matter how good the explanation for the
delay, an application for
condonation should be refused'.”
[4]
[19]
That said,
I believe the applicants did have some prospects of success if they
had not delayed unjustifiably. The employer
appears to be of
the view that before a closed shop agreement could be concluded, the
requirements of section 26(3) of the Labour
Relations Act , 66 of
1995 (‘the LRA’) had to be met and believed that
the union had to conduct a ballot before
it could demand a closed
shop agreement. However, it would seem that the requirements of s
26(3) simply state that a close shop
agreement will not be binding
before they are met
[5]
and not
that a close shop agreement cannot be concluded before they are met.
Consequently, on a
prima
facie
view the strike would have been protected if the demand was simply to
conclude a closed shop agreement. In that case, insofar as
the
applicants were dismissed for failing to comply with ultimatums to
return to work, that might be construed as dismissing them
for
persisting with a protected strike and would have been automatically
unfair.
[20]
On the other hand, the other charges related to obstructing the
entrance to Pride Bulk’s premises and destruction of
property
and, if proven might have been sufficient cause for a dismissal for
misconduct in the course of a protected strike.
[21]
However, in
Kroukam
v SA Airlink (Pty) Ltd
,
[6]
in which the LAC found that the main reason for a dismissal was
an automatically unfair one, it also held that it was sufficient
to
establish an automatically unfair dismissal if the illegitimate
reason played a significant role in the dismissal decision,
viz:
“
[103]
However, even if the reasons that I have found to constitute the
dominant or principal reason or reasons for the dismissal
did not
constitute the principal or dominant reasons for the appellant's
dismissal, I would still find that the dismissal was automatically
unfair if such reasons nevertheless played a significant role in the
decision to dismiss the appellant. In my view for policy
considerations, where such reasons have influenced the decision to
dismiss to a significant degree, the dismissal should be dealt
with
as an automatically unfair dismissal in order to deter as many
employers as possible from entertaining such illegitimate matters
as,
for example, racism and the exercise of rights conferred by the Act
as factors in their decisions to dismiss employees.”
[22]
Despite
these merits, the effective delay will mean that even if the matter
went to trial, it is unlikely to be heard this year,
which means that
the delay will probably be in the region of four years. The prejudice
to Pride Bulk in obtaining reliable testimony
after so long is
obvious particularly in relation to the testimony of other strike
misconduct. It is true the prejudice to the
applicants is great, but
this is a case where they are not deprived of all remedies as they
might still be able to sue their union
in delict. I am also mindful
of the oft repeated injunction that labour matters require
expeditious resolution.
[7]
Moreover, the prejudice to the applicants of not having their
day in court or the merits of their claim is not a deciding
factor,
in a case like this, where the delay is so extensive and the
respondent has not in any way contributed to it, or where
the remedy
was not beyond their reach. The real obstacles to proceeding were the
union’s indifference to the applicants’
plight despite
owing them a duty to assist them and the applicants’ own
unreasonably persistent blind faith in the union.
Had the applicants
sought
pro
bono
assistance earlier, or if the union had simply finalised the draft
statement of case itself, the delay might have been negligible.
[23]
Consequently, even if the merits were considered, I am not persuaded
they outweigh the weakness of the explanation for the
length of
delay.
[24]
The court is indebted to
Mr Morgan
for his diligent
prosecution of the condonation application in a
pro bono
capacity.
Order
[1]
The condonation application is dismissed.
[2]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
D
W Morgan of Morgan
Attorneys
RESPONDENT:
A
Roskam of Haffajee,
Roskam
Attorneys
[1]
2015 (4) BCLR 377
(CC) at 385-6, para [30].
[2]
(2011) 32
ILJ
2206 (LC) at 2217-8
[3]
At 2218-9, para [26].
[4]
(2014) 35 ILJ 1948 (LAC) at 1995-6.
[5]
The relevant provisions are:
26.
Closed shop agreements
(1)
A representative trade union and an employer or employers'
organisation may conclude a collective agreement
, to be known as
a closed shop agreement, requiring all employees covered by the
agreement to be members of the trade union.
(2)
….
(3)
A closed shop agreement
is binding only if
-
(a)
a ballot has been held of the employees to be covered by the
agreement;
(b)
two thirds of the employees who voted have voted in favour of the
agreement;
(c)
there is no provision in the agreement requiring membership of the
representative trade union before employment commences;
and
(d)
it provides that no membership subscription or levy deducted may be-
(i)
paid to a political party as an affiliation fee;
(ii)
contributed in cash or kind to a political party or a person
standing for election to any political office; or
(iii)
used for any expenditure that does not advance or protect the
socio-economic interests of employees.
(emphasis
added)
[6]
[6]
(2005) 26
ILJ
2153 (LAC) at 2188.
[7]
See e.g
Colett
at
1955, para [34].