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[2018] ZALCJHB 227
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Gamede and Another v Masege NO and Others (JR1189/13; JR487/13) [2018] ZALCJHB 227 (8 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE NO: JR1189/13
JR487/13
In the matter between:
AUTHORITY SIPHOSETHU
GAMEDE
First
Applicant
VINCENT
HLUBI
Second
Applicant
and
COMMISSIONER ADV K
MASEGE
N.O
First
Respondent
SAFETY AND SECURITY
SECTORAL
BARGAINING
COUNCIL
Second
Respondent
SOUTH AFRICAN POLICE
SERVICES
Third
Respondent
Application heard: 7
June 2018
Judgment
delivered: 8 June 2018
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the first respondent, to whom I shall refer as
‘the
arbitrator’. In her award, the arbitrator found that the
dismissals of the applicants were substantively and procedurally
fair. The review application was filed late, and in terms of an order
granted on 22 march 2017, the applicants were directed to
file an
application for condonation. The application is opposed by the third
respondent.
[2] The delay in filing
the review application is seven weeks. The third respondent submits
that the explanation for this delay
is wholly unsatisfactory, the
prospects of success favour the third respondent and the third
respondent has been severely prejudiced
by the delay. The third
respondent further submits that the application for condonation
should be refused as it has been brought
some three years and ten
months after the review application was filed, without any
explanation.
[3]
The court has a discretion, to be exercised judicially, to grant
condonation. Among the factors usually relevant for
consideration are the degree of lateness, the explanation therefor,
the prospects of success, the prejudice that parties will suffer
if
condonation is granted or refused, and the importance of the case.
None of these factors are individually decisive and
the court must
consider all the facts. In the final analysis, it is a matter
of fairness to the parties. Condonation applications
require a court
to balance various interests and factors, having regard to all of
them with none of them being decisive. (See
Melane
v Santam Insurance Co. Ltd
1962 (4) SA
531
(A) at page 532;
NEHAWU obo Mafokeng
and Others v Charlotte Theron Children’s Home
[2004] 10 BLLR 979
(LAC).
[4]
In
Foster v Stewart Scott Inc.
(1997) 18
ILJ
367(LAC),the Labour Appeal Court noted the following as factors
which have to be considered or taken into account in a condonation
application:
the degree of lateness or
non-compliance with the rules;
the explanation therefor;
the prospects of success;
the importance of the
case;
the respondent's interest
in the finality of the judgment;
the convenience of the
court; and
the avoidance of
unnecessary delays in the administration of justice
[5]
The principles were also summarised in
South
Africa Post Office Ltd v CCMA & Others
[2012] JOL 28463
(LAC). In this case, the court recognised that
ultimately the test is whether it is in the interests of justice to
grant condonation.
The court accepted that in matters where
importance is placed upon the speedy and expeditious resolution of a
dispute, even a short
delay may not be excusable, unless an
explanation is proffered that sets out the reasons for the delay
which the Court should find
acceptable. The court further held
that:
Where it is evident that
the party seeking condonation has no prospects of succeeding in his
principal claim or opposition, no purpose
is served in granting
condonation and the Court must in such circumstances refuse to grant
condonation irrespective of the degree
of delay or the explanation
provided.
[6] In
National Union
of Mineworkers v Council for Mineral Technology
[1998] (2) ZALAC
22
, the LAC established the principle that given the extent of the
delay and the poor explanation for the delay, it was not necessary
to
consider the applicant’s prospects of success in the main
application. This was affirmed more recently in
Collett v
Commission for Conciliation, Mediation & Arbitration
[2014] 6
BLLR 523
(LAC) where the court stated as follows:
There are overwhelming
precedents in this court, the Supreme Court of Appeal and the
Constitutional Court for the proposition 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
(1999) 3 BLLR 209
(LAC) at para 10, 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 532 C-D... should be
followed but:
‘
There
is a further principle which is applied and that is 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.’
The submission that the
court a quo had to consider the prospects of success irrespective of
the unsatisfactory and unacceptable
explanation for the gross and
flagrant disregard of the rules is without merit.”
[7] The award was sent to
the applicants on 22 March 2013; the six week period envisaged in
section 145(1)(
a
) of the Labour Relations Act (LRA) within
which to file the review application expired on 3 May 2013. The
review application was
filed on 21 June 2013. The delay is not
excessive, but it is not insignificant.
[8] The applicants blame
the conduct of their previous attorney, Mr Mnisi, solely for the
delay in the late filing of the review
application. It is trite that
a litigant cannot hide behind the tardiness of his representative. In
Saloojee
and another v Minister of Community Development
1965 (2) SA 135
(A) at paragraph 141C-E, the court said "
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 .
."
[9]
In
Mngomezulu and Another v Mulima NO
and Others
(JR2744/12) [2017] ZALCJHB
415 (7 November 2017I) the court stated the following, at paragraph
12:
…
In
National Union of Metal Workers vs Kroon
Gietary and Staal
the court refused a
condonation application wherein the deponent attributed the delay to
his representative. The court quoted in
approval the case of
Regal
v African Superstate (Pty) Ltd
where
the court held that 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. A litigant is not entitled
to hand over his matter to his attorney and wash his
hands of it.
[10]
T
he applicants have left periods of the
delay unexplained. It is trite that condonation is not a mere
formality and there for the
taking; rather, the applicant for
condonation must provide a proper and full explanation for the period
of the delay. The applicants
has failed to furnish a proper
explanation for the periods between payment to Mnisi attorneys on 30
March 2013 to 4 June 2013,
save for a weak excuse that they contacted
Mnisi attorney and made a follow up call and between 4 June 2013
until the application
was filed on 27 June 2013, except for a few
unsubstantiated averments.
[11] In
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and Others
(2010) 31
ILJ
1413
(LC) at para 13, the Court held:
In explaining the reason
for the delay it is necessary for the party seeking condonation to
fully explain the reason for the delay
in order for the court to be
in a proper position to assess whether or not the explanation is a
good one. This in my view requires
an explanation which covers the
full length of the delay. …”
[12] In
eThekwini
Municipality v Ingonyama Trust
2013 (5) BCLR 497
(CC) at para 28,
the Court said the following where the explanation furnished did not
cover the entire period and part of the delay
was unexplained:
As stated earlier, two
factors assume importance in determining whether condonation should
be granted in this case. They are
the explanation furnished for
the delay and prospects of success. In a proper case these factors
may tip the scale against the
granting of condonation. In a case
where the delay is not a short one, the explanation given must not
only be satisfactory but
must also cover the entire period of the
delay. Thus in
Van Wyk v Unitas Hospital and Another (Open
Democratic Advice Centre as Amicus Curiae),
this Court said in
this regard:
“
An
applicant for condonation must give a full explanation for the delay.
In addition, the explanation must cover the entire period
of delay.
And, what is more, the explanation given must be reasonable. The
explanation given by the applicant falls far short of
these
requirements. Her explanation for the inordinate delay is superficial
and unconvincing.”
[13]
The application for condonation is not accompanied by any proof of
the allegations made therein. In the replying affidavit,
the
applicants attached two annexures of proof of averments. These do not
come to their assistance as annexure “AG1”
and “AG2”
do not relate to the period for the delay – being between
3 May 2013 (which was the date when
the six week period envisaged in
section 145 within which to file the review application expired) and
the review application was
filed on 21 June 2013. These annexures are
dated 8 October 2012 and 17 October 2012 respectively.
[14] In short, the
reasons thus proffered by the applicants for their delay is
inadequate, unacceptable and do not constitute a
good reason for the
delay in the filing of the review application.
[15] Strictly, according
to the applicable authorities, in the absence of a satisfactory
explanation for a unreasonable delay,
it is not necessary for the
court to embark on an inquiry into the prospects of success. (See
Collett v Commission for Conciliation, Mediation & Arbitration
(
supra
).
[16] Even if I were to
have regard to the applicants’ prospects of success, when
regard is had to totality of evidence as
contained in the record and
the analysis of evidence and argument in the award, it is evident
that the arbitrator considered the
principal issue that was before
her; that she evaluated the facts presented at the hearing and that
the conclusion that she reached
- that the dismissal of the
applicants was substantively fair - was reasonable and one that a
reasonable decision-maker would have
reached in relation to the
totality of evidence before him. The arbitrator evaluated most, if
not all, of the applicants versions
presented at arbitration and that
facts, which the applicant contends were ignored by her, were not
material and would not have
resulted in a different outcome.
[17] The test to be
applied in review applications is one that carefully preserves the
distinction between an appeal and a review.
For this reason, it is
incumbent on an applicant to establish that the arbitrator committed
a material irregularity and that the
decision or outcome of the
proceedings, in the form of the award, falls outside of a band of
decisions to which a reasonable decision-maker
could come on the same
material. In the present instance, the applicants’ case is no
more than that the arbitrator failed
properly to assess the evidence.
[18]
In
Gold Fields Mining SA (Pty) Ltd v CCMA
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC)), The Labour Appeal Court noted that a review court is not
required to take into account every factor individually, consider
how
the arbitrator treated and dealt with each factor and then determine
whether a failure by the arbitrator to deal with one or
more factors
amounted to a process-related irregularity sufficient to set aside
the award. The court cautioned against adopting
a piecemeal approach
since a review court must necessarily consider the totality of the
available evidence (at paragraph 18 of
the judgment). Specifically,
the questions for a review court to ask or whether the arbitrator
gave the parties a full opportunity
to have their say in respect of
the dispute, whether the arbitrator identified the issue in dispute
that he or she was required
to arbitrate, whether the arbitrator
understood the nature of the dispute, whether he or she dealt with a
substantial merits of
the dispute and whether the decision is one
that another decision-maker could reasonably have arrived at based on
the evidence
(see paragraph 20). So, when arbitrator fails to have
regard to the material facts it is likely that he or she will arrive
at a
decision that is unreasonable. Similarly, where an arbitrator
fails to follow proper process he or she will arrive at an
unreasonable
outcome. But, as the court emphasised, this is to be
considered on a totality of the evidence and not on a fragmented,
piecemeal
analysis (at paragraph 21).
[19] As I have indicated
above, the award discloses that the arbitrator afforded the parties a
full opportunity to have their say,
identified the primary issue in
dispute, understood the nature of the dispute and dealt with the
substantial merits of the dispute.
In my view, the evidence does not
disclose any reviewable irregularity on the part of the arbitrator
and on that basis, in accordance
with the two-stage test to be
applied, the applicant’s prospects of success are minimal. The
applicants were dismissed after
it had been ascertained that they had
been in contact with a suspect involved in ATM bombings. They were
identified after cell
phone data acquired from a cell phone provider
revealed regular contact between the suspect and a number identified
as that of
the second applicant. In so far as it was submitted that
in respect of the second applicant, there was insufficient evidence
to
sustain the finding made against him, at paragraph 7.6 of the
award, the arbitrator records that it was not disputed that the
second
applicant’s phone was used to communicate with the
suspect of the investigation. She finds that the only inference to
draw
from the evidence relating to a visit by the police and the
contact initiated by the second applicant with the first applicant in
this regard is that the second applicant was anxious or apprehensive
about the visits from the police because he was involved in
some
criminal activity or was aware of it. On this basis, the arbitrator
rejected the second applicant’s version that he
knew nothing
about the suspect prior to the interview with the investigating
officer. This is not an unreasonable inference to
draw, or a
conclusion that falls outside of the bounds of reasonableness,
[20] Finally, in relation
to prejudice, it is apparent from the papers that the third
respondent would be severely prejudiced by
any further delay in the
matter. Not only have the applicants delayed in instituting the
review application, but they have also
been dilatory in the
prosecution of the review application. The application was
filed on 21 June 2013; the applicant’s
filed the record on 17
April 2014 and their supplementary affidavit on 20 May 2016. In terms
of the practice manual, this in itself
or to have resulted in the
application for review being deemed to have been withdrawn. The
review application that was set down
for 22 March 2017 was postponed
sine die
so that they could bring an application for
condonation. The review application was thereafter set down for June
2018. If the application
for condonation is granted and the
applicants are successful in the review application, then it is
likely that their dispute will
be remitted to the SSSBC to be heard
de novo
. If this is indeed the case, the third respondent will
be prejudiced and hampered in putting a proper defence forward. The
facts
giving rise to the dispute arose in 2013. It is now some five
years later since the events had occurred. Furthermore, the third
respondent relied on the evidence of witnesses who may not be
available to give evidence at the arbitration. If they are available
then it is likely that their memories would be diminished by the
effluxion of time. Furthermore, documents relied on may be misplaced.
The prejudice therefore that the third respondent will suffer should
condonation be granted far outweighs that of the applicants.
[21] Finally, I should
mention the inordinate delay in filing application for condonation.
In this regard, it should be noted that
the review application was
filed on 21 June 2013 and the application for condonation was filed
on 7 April 2017. A period of some
three years and ten months have
elapsed prior to them bringing an application for condonation. Aside
from the delay been
excessive, the applicants have not tendered an
explanation for this delay. It is trite that a review application
must be brought
as soon as possible. The applicants have brought it
several years after the review application was instituted even though
they
have been represented throughout.
[22] In
Darries v
Sheriff, Magistrate’s Court, Wynberg and Another
1998 (3)
SA 34
(SCA) at 40H-41E, the Court held as follows:
Condonation of the
non-observance of the Rules of this Court is not a mere formality. In
all cases some acceptable explanation,
not only of, for example, the
delay in noting an appeal, but also, where this is the case, any
delay in seeking condonation, must
be given. An appellant should
whenever he realizes that he has not complied with a Rule of Court
apply for condonation as soon
as possible. Nor should it simply be
assumed that, where non-compliance was due entirely to the neglect of
the appellant’s
attorney, condonation will be granted.
[23] In
Seatlolo &
others v Entertainment Logistics Service (A Division of Gallo Africa
Ltd)
[2011] JOL 27264
(LC), the Labour Court held:
I
t
is trite that an application for condonation must be brought as soon
as the party becomes aware of the default. This principle
has been
emphasised by the Supreme Court of Appeal on numerous occasions (see
Saloojee, supra, at 138H; Rennie v Kamby Farms (Pty)
Ltd
1989 (2) SA
124
(A) at 129G; and Napier v Tsaperas
1995 (2) SA 665
(A) at
671B–D). This approach has been endorsed by the Labour Appeal
Court which in fact advocates bringing the application
for
condonation on the same day it is discovered to be necessary (see in
this regard, inter alia, Allround Tooling (Pty) Ltd v
NUMSA &
others
[1998] 8 BLLR 847
(LAC) [also reported at
[1998] JOL 2719
(LAC) – Ed] at 849 paragraph [8]; NEHAWU v Nyembezi
[1999] 5
BLLR 463
(LAC) [also reported at
[1999] JOL 4612
(LAC) – Ed] at
464D–F; and Librapac CC v Fedcraw & others
[1999] 6 BLLR
540
(LAC).
[24] In summary, the
applicants failed to file the application for condonation as
soon as they became aware of the default,
they have failed to provide
a satisfactory explanation for a not insignificant delay, and their
prospects of success, having regard
to the manner in which they
grounds for review have been pleaded, are poor. Further, the
prejudice to the third respondent should
condonation be granted
outweighs the prejudice to the applicant’s in refusing to grant
the application.
[25] The third respondent
did not pursue the issue of costs. The applicants appear to be
indigent and there would in any event be
little purpose in making any
order as to costs.
[26] Finally, the court
must express its gratitude to the SASLAW
pro bono
clinic who
assisted the applicants when the application for condonation was
argued.
I make the following
order:
1.
Condonation for the late filing of the
review application is refused.
2.
The review application is dismissed.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: G Mthalane (Pro bono)
For
the respondent: Adv Tilly, instructed by the state attorney