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[2018] ZALCJHB 231
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MEC for Co-Operative Governance Human Settlement and Traditional Affairs v General Public Services Sectoral Bargaining Council and Others (JR1283/17) [2018] ZALCJHB 231 (20 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE NO: JR1283/17
In the matter between:
MEC FOR CO-OPERATIVE
GOVERNANCE
HUMAN SETTLEMENT AND
TRADITIONAL
AFFAIRS
Applicant
and
GENERAL PUBLIC
SERVICES SECTORAL
BARGAINING
COUNCIL
First
Respondent
COMMISSIONER M.E.
PHOOKO
N.O.
Second
Respondent
MAHLATSE MATLALA &
OTHERS
Third
Respondent
Application heard: 19
June 2018
Judgment delivered:
20 June 2018
JUDGMENT
VAN
NIEKERK J
[1] This is an unopposed
application to review and set aside an arbitration award issued by
the second respondent, to whom I shall
refer to as ‘the
arbitrator’. In his award, the arbitrator found that the
applicant had committed an unfair labour
practice relating to the
provision of benefits by failing to accept certain performance
instruments. The applicant was ordered
to assess the instruments
within 30 days of receipt of the award.
[2] The material facts
are recorded in the arbitration award under review, and I do not
intend to burden this judgement with their
repetition. It is
sufficient to record for present purposes that in terms of a policy
document regulating performance, employees
are required to submit
performance instruments in accordance with a stipulated time table,
failing which employees are disqualified
from receiving performance
bonuses and pay progression in spite of any good performance. In his
award, the arbitrator, in his analysis
of the evidence, held that the
third and further respondent’s had made out a
prima facie
case for the deprivation of the benefits by the applicant and that
the evidential burden then shifted to the applicant to justify
its
conduct. That justification amounted to no more than that the
relevant performance instruments had been submitted late. The
arbitrator held that it was not disputed that in terms of the policy,
the performance instruments were required to be submitted
within the
prescribed time frame and that the policy made no provision for
condonation for the late submission of the instruments.
However, he
went on to note that the policy ‘is not cast in stone, in other
words, it cannot be said that its provisions
are peremptory’.
The arbitrator went on to found that each case must necessarily be
determined on its own merits and that
in this particular instance,
there was no deliberate failure to submit the performance instruments
timeously and that given the
inexcessive degree of lateness, the
decision not to assess the third and further respondents was
arbitrary and thus constituted
an unfair labour practice.
[3] The application for
review was filed late. The applicant acknowledges receiving the award
under review on 30 March 2016. On
this basis, the award ought to have
been filed by no later than 11 May 2016. The review application was
filed only on 13 July 2016.
Contrary to what the applicant submits,
the degree of lateness is not ‘plus/minus 31 days (6 weeks)
late’; the application
was filed nine weeks late. That is a
considerable delay.
[4] The explanation for
the delay is centred on internal authorisation procedures. The
appointment of the applicant attorneys of
record was approved only on
or about 9 June 2016, well after the expiry of the six-week time
limit established by s145. A consultation
was held only on 23 June
2016, and preparation with the application commenced then.
[5] Insofar as the
prospects of success are concerned, the applicant says no more than
that ‘it is clear’ from the grounds
of review that the
applicant has prospects of success on review, and cross-refers to the
substance of the review application.
[6] 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).
[7]
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.
[8] 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.”
[9]
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. …”
[10] 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.”
[11]
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).
[12] As I have recorded
above, the delay in the present instance is substantial. Further, the
explanation for the delay is incomplete.
Even if I were to accept
that approval was granted only on 9 June 2016 to proceed with the
application, there is no explanation
why the application was filed
only on 13 July 2016, some 5 weeks later. At the time the applicant
attorneys were instructed on
23 June 2016, they must have appreciated
that the application was already substantially out of time. Even if I
were to grant the
applicant a degree of latitude in relation to the
explanation for the delay, in my view, the minimal prospects of
success in the
main application dictate that condonation ought to be
refused. In this regard, as I have noted above, the applicant deals
with
prospects of success by way of no more than a cross-reference to
the substance of the review application. That in itself is
insufficient
– it is incumbent on an applicant seeking
condonation to file a substantive affidavit dealing with all of the
relevant factors,
including the prospects of success. It is not for
the court to trawl through the main application to form its own
assessment of
what those prospects might be. In the review
application, the applicant simply records that in its view, the
arbitrator committed
a gross irregularity, committed misconduct in
relation to his duties as an arbitrator and exceeded his powers. A
fourth ground
for review alludes to the submission to the effect that
the award is reviewable on the ground that it is not rationally
connected
to the facts of material evidence before the arbitrator and
that the award is consequently irrational and unfair. There is no
supplementary
affidavit in which the applicant has sought to amplify
its grounds for review. In effect, the grounds for review are no more
than
a statement of those grounds referred to in s 145 and the
additional averment of the absence of a rational connection between
the
award and the facts. There is not a single averment to the effect
that the award falls outside of a band of decisions to which
reasonable decision-makers could come on the available material. That
is what distinguishes a review from an appeal and it is accordingly
incumbent on an applicant in a review application at least to plead
the two-stage test referred to above, and its application to
the
facts of the case. It is not for the applicant simply to parrot the
three grounds for review referred to in s 145 and regard
those as
sufficient and definitive.
[13] The applicant’s
attorney was obviously alive to the shortcomings in the papers as he
submitted heads of argument which
more adequately addressed the test
for review. Regrettably, it is not open to the applicant to make out
its case for review in
heads of argument. To the extent that the
applicant’s contended at the hearing of the application that
the arbitrator had
exceeded his powers given the terms of the policy
and the fact that the third and further respondents had been afforded
a two-week
extension to comply with the requirement is submit
performance instruments, this does not amount to the arbitrator
exceeding his
powers. His powers were to determine the existence or
otherwise of an unfair labour practice. That he did. The fact that he
chose
to interpret and apply the policy in a manner more flexible
than that contended for by the applicant does not necessarily mean
that the arbitrator exceeded his powers, nor does it mean that he
committed any other reviewable irregularity in coming to the decision
that he did.
[14]
For all of the above reasons, in my view, condonation for the late
filing of the review application 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: Mr MC Chauke, Bopela Maake Attorneys