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[2018] ZALCJHB 228
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Kgobe v Commission for Conciliation Mediation and Arbitration and Others (JR1988/17) [2018] ZALCJHB 228 (20 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE NO: JR1988/17
In the matter between:
PAULINA
KGOBE
Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND
ARBITRATION
First
Respondent
COMMISSIONER L. SHEAR
N.O
Second
Respondent
TLHOKOMELO DROP-IN
CENTRE
Third
Respondent
Application heard: 19 June 2018
Judgment
delivered: 20 June 2018
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the second respondent (the arbitrator’).
In his
award, the second respondent held that the applicant’s
dismissal was substantively unfair, and ordered the third respondent
to pay her the equivalent of three months remuneration. It is not in
dispute that the quantification of the amount of compensation
in the
initial award was incorrect; the arbitrator issued a variation ruling
on 5 February 2017 when this was corrected. The total
amount awarded
to the applicant was R 24 600.
[2] The applicant seeks only to review
the quantum of the compensation awarded. In her application, she
stated in her opinion, she
ought to be awarded the sum between six
and 12 months remuneration.
[3] The application for review was
filed late. In support of what amounts to an application for
condonation, the applicant states
that the late submission of the
review application was not intentional. She annexed a copy of a
letter dated 22 February 2017 addressed
to the arbitrator by her
legal representative, in which the CCMA was advised of the
applicant’s instructions to seek a review
of the award as
varied. It was noted that the applicant would formally apply for the
review. The applicant states that during April
2017, she was
scheduled to attend meetings with her legal representative, which
were postponed. She was under the impression that
the review was
being dealt with by her representative. On 5 August 2017 she went to
the CCMA to enquire about the review application
and was informed
that no review application had been submitted. At that stage, the
applicant sought the assistance of the pro bono
clinic. As I have
mentioned, the application was filed only on 18 October 2017.
[4] 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).
[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] To the extent that the applicant
blames the conduct of their previous attorney, 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 .
."
[8]
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.
[9]
T
he
applicant has 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.
[10] 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. …”
[11] 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.”
[12]
Strictly, according to the applicable authorities, in the absence of
a satisfactory explanation for an 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
).
[12]
The review application ought to have been filed by 19 March 2017; the
delay is therefore some seven months. That is a substantial
delay.
The explanation for the delay does not extend to the whole period of
the delay, and amounts to little more than the assertion
that the
applicant did not intend to delay the filing of the application. Even
if I accept that the applicant’s explanation
for the delay is
satisfactory, in my view, the prospects of success are not such that
they ought to compensate for the extent of
the delay. Within the
relevant statutory constraints, CCMA commissioners are afforded a
broad discretion in relation to the remedies
that they afford. In the
present instance, the arbitrator recorded that it was ‘quite
evident’ that the relationship
between the parties had
irretrievably broken down. Given that breakdown, which the arbitrator
found ‘partly due’ to
the applicant’s conduct, in
his view, an award of three months compensation was just and
equitable. The applicant’s
papers in the present application
discloses no more than what amounts to her dissatisfaction with the
quantum awarded. She believes
that she is entitled to more; at least
the equivalent of six months’ remuneration. The applicant’s
dissatisfaction
with the quantum of compensation is obviously not a
basis for review. On the face of the award, the commissioner
exercised a discretion
and took into account the evidence before him,
including his finding that the applicant had not been entirely
innocent in the events
that led ultimately to her dismissal.
[13]
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.
I cannot find
on the papers that the decision to which the arbitrator came was so
unreasonable that no reasonable decision-maker
could have come to it.
In the face of a lengthy delay and poor prospects of success,
condonation for the late filing of the review
application thus stands
to be refused.
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: In person