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[2018] ZALCJHB 214
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Sibanyoni v Trans African Projects (Pty) Ltd (JS385/16) [2018] ZALCJHB 214 (28 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JS 385/16
In
the matter between:
MAPULE
MUSHAISANO
SIBANYONI
Applicant
and
TRANS AFRICAN PROJECTS
(PTY)
LTD
Respondent
Heard:
11 May 2018
Delivered:
28 June 2018
Summary:
Condonation application for the late filing of a statement of case.
No proper explanation for the delay tendered. Application
dismissed.
JUDGMENT
PRINSLOO J
Introduction
[1]
The Applicant seeks condonation for the
late filing of her statement of case.
[2]
The application is opposed.
Background facts
[3]
The
Applicant was employed by the Respondent as a document controller/
reception assistant. On 10 April 2015 a formal consultation
session
was held where the Applicant was informed that the Respondent would
embark on a restructuring exercise, as provided for
in the Labour
Relations Act
[1]
(LRA) and that
her position may be affected.
[4]
As an alternative to dismissal, the
Respondent offered the Applicant a position in the form of working on
a rotational basis of
one week at reception and one week in document
control. This offer was made to ensure the Applicant’s job
retention.
[5]
The Applicant rejected this offer and
requested to rather take a voluntary retrenchment package.
[6]
In accordance with the Applicant’s
request and on 23 April 2015 the Applicant and the Respondent
concluded a severance agreement
wherein the parties agreed to the
termination of the Applicant’s services with effect from 30
April 2015. The parties also
agreed to the amount to be paid to the
Applicant. The agreement was in full and final settlement of ‘all
claims and disputes
which have arisen or which may arise in future
between the parties in relation to the employee’s employment
with the Company
and the termination thereof and whether such claims
or disputes arise in contract, delict, equity, fairness, statute or
otherwise.’
[7]
In May 2015 the Applicant referred an
unfair dismissal dispute to the Commission for Conciliation,
Mediation and Arbitration (CCMA)
under case number GAJB 10010-25,
disputing
inter alia,
the
calculation of her severance pay. The Respondent indeed miscalculated
the Applicant’s years of service and on 3 June 2015
the parties
concluded a settlement agreement in terms of which the Respondent
paid the Applicant an additional amount of R 8 000.
This was the
second settlement agreement concluded between the parties.
[8]
Notwithstanding the conclusion of the
aforesaid agreements, the Applicant referred an unfair discrimination
dispute to the CCMA
on 26 October 2015 under case number
GATW13383-15. The dispute was conciliated on 4 December 2015 and the
matter was erroneously
referred for arbitration. The dispute was set
down for arbitration on 24 March 2016 when the CCMA issued a ruling
that it lacked
jurisdiction to adjudicate the Applicant’s
unfair discrimination dispute and the matter should be referred to
the Labour
Court.
[9]
The Applicant filed a statement of case on
26 July 2016 and it is evident from the legal issues and the relief
sought, as set out
in the statement of case, that the issues raised
by the Applicant are twofold. Firstly, the Applicant challenges
whether her dismissal
based on operational requirements was
justifiable and for a fair reason and she seeks an order that her
dismissal be found to be
substantively and procedurally unfair.
Secondly, the Applicant’s case is that she was unfairly
discriminated against in the
workplace on the basis of her race and
she seeks an order that she was so discriminated against.
[10]
The Applicant filed an application for the
late filing of her statement of case and the condonation application
was enrolled for
hearing on 18 November 2016. The Applicant failed to
attend Court on 18 November 2016 and the matter was struck off the
roll for
lack of appearance. On 22 June 2017 the Applicant filed an
affidavit in terms of the provisions of Rule 15 of the Labour Court
Rules, requesting for the matter to be re-enrolled. The application
for re-enrolment of the condonation application was granted
on 13
March 2018 and the matter was enrolled for hearing on 11 May 2018.
The test for the grant
of condonation
[11]
The relevant legal principles to be applied
in an application for condonation are well established.
[12]
This
Court has a discretion, which must be exercised judicially on a
consideration of the facts of each case and in essence it is
a matter
of fairness to both sides
[2]
.
[13]
In
Melane
v Sanlam Insurance Co Ltd
[3]
it was held that:
‘…
.
Among the facts usually relevant, are the degree of lateness, the
explanation therefore, 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 will be no point in granting
condonation. What is needed is an objective conspectus of all the
facts.’
[14]
In this Court however the principles have
long been qualified by the rule that where there is an inordinate
delay that is not satisfactorily
explained, the applicant’s
prospects of success are immaterial.
[15]
This
Court has conventionally applied the approach that in the absence of
a satisfactory explanation for a delay, the applicant’s
prospects of success are ordinarily irrelevant.
[4]
This principle was confirmed in
National
Education Health and Allied Workers Union on behalf of Mofokeng and
others v Charlotte
Theron
Children’s Home
[5]
where the Labour Appeal Court held that without a reasonable and
acceptable explanation for a delay, the prospects of success are
immaterial.
[16]
In
Collett
v Commission for Conciliation, Mediation and Arbitration
[6]
the
Labour Appeal Court confirmed 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.
[17]
The
onus is on the applicant to satisfy the court that condonation should
be granted. In employment disputes there is an additional
consideration which applies in determining whether the onus has been
discharged, as was held
in
National
Union of Metalworkers of SA on behalf of Thilivali v Fry’s
Metals (A Division of Zimco Group) and others
[7]
:
‘
There
is, however, an additional consideration which applies in employment
disputes in determining whether an applicant for condonation
has
discharged this onus. This is the fundamental requirement of
expedition. The Constitutional Court has, as a matter of fundamental
principle, confirmed that all employment law disputes must be
expeditiously dealt with and any determination of the issue of good
cause must always be conducted against the back drop of this
fundamental principle in employment law.’
[18]
The
fundamental requirement of expedition is not to be ignored. In
Toyota
SA Motors (Pty) Ltd v CCMA and others
[8]
the Constitutional Court emphasised that one of the fundamental
purposes of the LRA was to establish a system for the quick
adjudication of labour disputes. When it assesses the reasonableness
of a delay, the court must not lose sight of this purpose.
[19]
In summary: the Courts have endorsed the
principle that where there is a delay with no reasonable,
satisfactory and acceptable explanation
for the delay, condonation
may be refused without considering prospects of success and to grant
condonation where the delay is
not explained, may not serve the
interests of justice. The expeditious resolution of labour disputes
is a fundamental consideration.
[20]
Condonation for delays in all labour law
litigation is not simply there for the taking. The starting point is
that an applicant
in an application such as the present seeks an
indulgence and bears the onus to show good cause.
[21]
It is in this context that the application
for condonation stands to be determined.
The degree of lateness
[22]
As
already alluded to, the Applicant’s statement of claim has two
distinct causes of action namely an unfair dismissal based
on
operational requirements and an unfair discrimination claim based on
the provisions of the Employment Equity Act
[9]
(EEA).
[23]
The claim based on dismissal due to
operational requirements was set down for conciliation on 3 June 2015
when the parties concluded
a settlement agreement in full and final
settlement of the said dispute.
[24]
The claim based on unfair discrimination
was set down for conciliation on 4 December 2015, where after it was
erroneously referred
for arbitration.
[25]
Section 191(11)(a) of the LRA prescribes a
90-day period for referral of a dispute to the Labour Court for
adjudication. The 90-day
period is calculated from the date a
commissioner has certified that the dispute remained unresolved.
[26]
In
casu
the
dispute relating to unfair dismissal for operational requirements had
to be referred within 90 days from 3 June 2015, thus by
1 September
2015, and the claim based on unfair discrimination had to be referred
within 90 days from 4 December 2015, thus by
3 March 2016. The
relevant date being the date on which the dispute was certified to
remain unresolved.
[27]
The statement of case was filed with this
Court only on 26 July 2016, clearly outside the prescribed 90-day
period.
[28]
It is evident from a perusal of the
statement of case that the Applicant conflated her retrenchment with
a claim for unfair discrimination.
The dispute relating to unfair
dismissal for operational requirements was referred more than 10
months late and the claim based
on unfair discrimination was more
than 4 months late.
[29]
The delay is no doubt material and
inordinate. In fact, it is excessive given the context within which
labour litigation takes place
and the system that is designed to
ensure the effective and expeditious resolution of labour disputes.
This is even more so where
the LRA provides for a period of 90 days
to file a statement of case, which period is in itself generous and
lengthy.
[30]
The degree of lateness is also material
considering that the dispute arose as far back as 2015.
[31]
The degree of lateness should however not
be considered in isolation.
Explanation for the
lateness
[32]
A failure to comply with the generous
period of 90 days, has to be explained and the reasonableness of the
delay should be considered
by having regard to the explanation for
the delay.
[33]
As
the Applicant seeks an indulgence from the Court and as she bears the
onus to satisfy the Court that condonation should be granted,
it is
incumbent upon the Applicant to provide the Court with a full
explanation for every period of the delay. It is not sufficient
simply to list significant events that occurred during the period in
question as that does not assist the Court properly to assess
the
reasonableness of the explanation
[10]
[34]
The explanation for the delay has to be
compelling, convincing and comprehensive and should cover every
period of the delay.
[35]
In her affidavit before Court, which was
drafted with the assistance of an attorney, the Applicant provided
the following explanation
for the delay:
[36]
The Applicant attended to her father who
took ill and was admitted at a hospital in Thohoyandou since the
beginning of April 2016.
The Applicant was actively involved in
caring for her father and she remained at his bedside. The
Applicant’s father passed
away on 29 April 2016.
[37]
The Applicant submitted that she was unable
to engage the services of an attorney ‘until recently’
and the delay in
filing her statement of case was a direct result of
her not being in a position to seek legal advice. She failed to raise
enough
funds to enable her to engage the services of an attorney
until ‘recently’.
[38]
This is the entire explanation provided by
the Applicant.
[39]
I have already alluded to the fact that the
Applicant should provide a full explanation for every period of the
delay. The longer
the delay, the better the explanation should be.
[40]
The dispute relating to unfair dismissal
for operational requirements had to be referred 1 September 2015.
There is no explanation
for the period between September 2015 and
April 2016. A substantial period of the delay remained completely
unexplained and this
Court is, in the absence of any explanation,
unable to assess the reasonableness of the delay.
[41]
The claim based on unfair discrimination
had to be referred by 3 March 2016.
[42]
The only period of the delay that is
explained, is April 2016, when the Applicant attended to her ill
father. Her father passed
away at the end of April 2016 and evidently
there is no explanation whatsoever for the period prior to April 2016
and the period
between May 2016 and 26 July 2016, when the statement
of case was filed with this Court.
[43]
The Applicant made a vague statement about
being unable to engage the services of an attorney ‘until
recently’ without
tendering any explanation as to why she was
unable to do so or when she engaged an attorney to assist her. The
Applicant’s
failure to raise enough funds, is also not
explained. The Applicant does not tell this Court when she was able
to raise the funds,
when she instructed her attorney and what other
attempts she made to obtain alternative assistance, for instance
approaching a
law clinic or the Legal Aid Board.
[44]
It is evident that the explanation tendered
for the period of delay is bereft of any detail and lacks
particularity. The Applicant
did no more than to refer to her
father’s sickbed in April 2016 and her inability to engage the
services of an attorney in
a sketchy manner without providing any
particulars.
[45]
There are material and substantial periods
of the delay that remained completely unexplained and for which the
Applicant tendered
no version as to what she did. In the instances
where she tendered an explanation, it did not record in any degree of
detail what
transpired during the relevant period of delay but it was
rather sketchy, bereft of any substance and detail and wholly
inadequate.
[46]
The Applicant has to provide an explanation
for every period of the delay to enable this Court to assess the
reasonableness of the
delay and the explanation for it. This the
Applicant failed to do. The explanation she tendered is inadequate
and far from compelling,
convincing or comprehensive.
Prospects of success
[47]
Having found that the delay is inordinate
and the explanation tendered not compelling or adequate, it leaves
the issue of prospects
of success.
[48]
In the authorities
referred to
supra
the Courts have endorsed the position that the failure to provide a
reasonable and acceptable explanation for the delay renders
prospects
of success immaterial
.
[49]
In
casu
and in light of the said authorities and given that the Applicant has
not provided a comprehensive, compelling or convincing explanation
for the delay, her prospects of success are immaterial, and thus need
not be considered.
Prejudice
[50]
This Court has a discretion, which must be
exercised judicially on a consideration of the facts of each case and
in essence it is
a matter of fairness to both sides.
[51]
The Respondent submitted that it would
suffer prejudice if condonation is granted as the Applicant provided
no proper explanation
for the late referral of her statement of case
and because the parties concluded an agreement in settlement of all
disputes. Even
if condonation is granted, the Applicant has no
prospect of succeeding with her case in future as the Respondent will
raise the
issue of full and final settlement concluded between them.
[52]
The Applicant on the other hand submitted
that she would suffer injustice and prejudice should her application
for condonation fail.
This is so, she submitted, because she was
unfairly dismissed for operational requirements and not in accordance
with the requirements
of the law. She will suffer harm if the doors
of justice will be closed to her.
[53]
The stance adopted by the Applicant in
approaching this Court and claiming unfair dismissal and
discrimination, is detached from
and in direct contradiction with the
letter she addressed to the Respondent on 20 April 2015. In the said
letter the Applicant
recorded that she was offered a position but
that she took the option of retrenchment and she thanked the
Respondent for all it
has done for her, for allowing her to be part
of the team and specifically stated that it had been a pleasure
working with and
representing the Respondent.
[54]
Furthermore, the Respondent made payment to
the Applicant of the monies due to her in terms of the agreements the
parties concluded
and the Applicant accepted such payment.
[55]
The refusal to condone the late filing of
the statement of case will have the result that the Applicant will be
denied the opportunity
to pursue her case before this Court. However,
the Applicant’s prejudice in her unfair dismissal and
discrimination claim
is not real prejudice, as she requested a
voluntary retrenchment package, where after the parties concluded an
agreement in full
and final settlement of all claims arising out of
the employment relationship and all monies due were paid to the
Applicant. The
retrenchment dispute was even further settled at the
CCMA on 3 June 2015. The Applicant has no basis to pursue her claim
any further
before this Court.
[56]
It is evident that the Applicant has not
pursued her matter diligently. More than three years after she left
the Respondent’s
employ, she is not one step closer to finality
in this matter.
[57]
I have to endorse the aim of the LRA namely
to resolve labour disputes speedily and without delay. Granting
condonation in a case
like this would not be in the interest of
justice as it would undermine the statutory purpose of expeditious
dispute resolution,
another factor that weighs heavily in the
Respondent’s favour.
[58]
On an objective conspectus of all the
facts, the Applicant’s application for condonation falls
hopelessly short off the mark.
The Applicant did not discharge the
onus to show good cause and to provide an acceptable and plausible
explanation for the delay.
For the above reasons, it will not be in
the interests of justice that the application for condonation be
granted.
[59]
In so far as costs are concerned, this
Court has a broad discretion in terms of section 162 of the LRA to
make orders for costs
according to the requirements of the law and
fairness. In my view the interest of justice will be best served by
making no order
as to costs.
[60]
In the premises I make the following order:
Order
1.
The application for condonation for the
late filing of the Applicant’s statement of case is dismissed;
2.
There is no order as to costs.
__________________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: In person
For
the Respondent: Advocate F Venter
Instructed
by: Cowan Harper Attorneys
[1]
Act
66 of 1995, as amended.
[2]
‘
Civil
Procedure in the Superior Court, Harms at B27.6.
[3]
1962
(4) SA 531
(A) at 532 C - F.
[4]
See
NUM
v Council for Mineral Technology
[1999]
3 BLLR 209 (LAC).
[5]
(2004)
25
ILJ
2195 (LAC)
at
para
23
.
[6]
(2014)
6 BLLR 523 (LAC).
[7]
(2015)
36
ILJ
232 (LC)
[8]
(2016)
37 ILJ 313 (CC).
[9]
Act
55 of 1998.
[10]
see
IMATU
obo Zungu v SALGBC and others
(2010) 31 ILJ 1413 (LC).