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[2018] ZALCJHB 329
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UCIMESHAWU obo Makwe and Others v Boyce NO and Others (JR237/2016) [2018] ZALCJHB 329 (18 September 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR237/2016
In
the matter between:
UCIMESHAWU
obo MOSES MAKWE &
51
OTHERS
Applicants
and
COMMISSIONER
TIMOTHY BOYCE
N.O
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Second
respondent
JOBURG
MARKET
Third
Respondent
Heard:
29 August 2018
Delivered:
18 September 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
UCIMESHAWU represents the
individual applicants who had referred an alleged unfair dismissal
dispute to the Commission for Conciliation
Mediation and Arbitration
(CCMA) on their own, following the termination of their services by
the third respondent (Joburg Market)
on 13 March 2015. It
was common cause that the individual applicants were employed in
terms of fixed term contracts,
which Joburg Market refused to renew
upon their expiry on 31 March 2015.
[2]
It was further common cause
that the applicants’ referral to the CCMA was out of time, and
that they were subsequently granted
condonation in that regard. The
matter was then referred for arbitration and came before the first
respondent (Commissioner) on
2 July 2015. The Commissioner
issued an arbitration award on 13 October 2015 in terms of
which the individual
applicants’ claim was dismissed, on the
basis that they had not established a reasonable expectation to be
retained in employment
by Joburg Market on an indefinite basis within
the meaning of section 186(1)(b) of the Labour Relations Act
(LRA).
[1]
[3]
On 24 February 2016,
the applicants launched an application to review the arbitration
award dated 13 October 2015.
Joburg Market had on
26 February 2016, objected to the late filing of the review
application. It was only on 18 April 2016
that the
applicants had filed an application for condonation, which Joburg
Market had opposed.
Applicable
principles:
[4]
It is trite that an application
for condonation is akin to seeking an indulgence from a court for
non-compliance with applicable
time frames. The Court within its
discretion, may grant an indulgence upon good cause being shown. The
principles enunciated in
Melane
v Santam Insurance Co. Ltd
[2]
have over the years been consistently applied in courts where
condonation is sought. The Constitutional Court in
Brummer
v Gorfil Brothers Investments (Pty) Ltd
in an endorsement of those principles has also since pointed out that
an application for condonation should be granted if it is
in the
interests of justice and refused if it is not. The interests of
justice must be determined by reference to all relevant
factors,
including the nature of the relief sought, the extent and cause of
the delay, the nature and cause of any other defect
in respect of
which condonation is sought, the effect on the administration of
justice, prejudice and the reasonableness of the
applicant’s
explanation for the delay or defect
[3]
.
[5]
Significant
with a determination of applications of this nature is
that
condonation cannot
be had for the mere asking, and that a party is required to make out
a case entitling it to the court’s
indulgence by showing
sufficient cause, and by giving a full,
detailed
and accurate account of the causes of the delay
[4]
.
In the end,
the
explanation must be reasonable enough to excuse the default.
[5]
.
Even more significant is the trite principle that a party must
seek condonation as soon as the need for such an application
becomes
apparent.
Evaluation:
The
delay and the explanation:
[6]
The period of delay in
launching the review application is about 292 days, which contrary to
the applicants’ contentions,
is excessive in the extreme. A
further delay that needs to be explained relates to the period
between 26 February 2016
when Joburg Market informed the
applicants that condonation was required, and 18 April 2016
when the application was
ultimately launched
[6]
.
[7]
Moses Makwe, one of the
applicants had deposed to the founding affidavit and averred that
they only approached UCIMESHAWU on 14 November 2015
for
assistance as they did not belong to a trade union. A letter was then
despatched to Joburg Market on 3 December 2015
to seek a
meeting with a view of amicably resolving the dispute. Furthermore,
it was submitted that the delay was occasioned by
the fact that the
applicants were not familiar with the Court’s Rules.
[8]
It was submitted on behalf of
Joburg Market that ignorance of the law was not an excuse, and that
to the extent that the individual
applicants did not belong to a
trade union, nothing prevented them from approaching any organisation
that offered free legal assistance.
To this end, it was contended
that the applicants have not tendered a compelling explanation for
their non-compliance with the
rules of this Court.
[9]
I fully agree with the
submissions made on behalf of Joburg Market that the explanation for
the delay proffered by the applicants
is wholly inadequate, as it is
lacking in detail, and does not cover each period of the delay. Worst
still, no attempt was made
by the applicants to explain the delay
after they were advised of the need to file an application for
condonation having launched
their review application. In a nutshell,
the explanation proffered by the applicants amount to no explanation
at all.
[10]
In the light of the excessive
delay and lack of an adequate explanation in that regard, ordinarily,
this would have been the end
of the matter. However, having had
regard to the principles set out in
Grootboom
v National Prosecuting Authority and Another
that
the interests of justice should be determined with reference to all
relevant factors
[7]
,
I will proceed to deal with them as below.
Prospects
of success:
[11]
The issue for consideration is
whether the applicants have established reasonable prospects of
success that are sufficient to outweigh
the failure to explain the
delay in launching the review application. Thus, all that is required
is a demonstration of the
likelihood
or chance of success when the main case is heard
[8]
.
In this regard, it is expected of the applicants
to
set forth briefly and succinctly such essential information as may
enable the court to assess the prospects of success
[9]
.
[12]
The applicants contend that
they have reasonable prospects of success since Joburg Market failed
to follow procedures when terminating
their contracts of employment,
in that they were not served with proper notices of termination. They
further contended that some
of them had long service, which
factor was not taken into account when the contracts were terminated.
It was further submitted
that during arbitration proceedings, the
applicants had represented themselves and were thus not familiar with
contractual disputes.
[13]
Joburg Market in opposing the
application contended that no submissions were made in terms of the
test for review; that the applicants
failed to show whether the
Commissioner conducted himself in a manner by which he had either
abused his powers or committed an
error in the adjudication of the
dispute; and that the applicants were merely disputing the reason for
the dismissal and not the
conduct of the Commissioner. It was further
submitted that the review application is in a guise of an appeal, as
the applicants
were merely unhappy with the Commissioner’s
award, and not because the Commissioner had committed some or other
irregularity
or misconduct.
[14]
The submissions made on behalf
of the applicants in regards to their prospects of success on the
merits of the review application
are sketchy and at worst, do not
come close to demonstrating any likelihood that the Commissioner’s
arbitration award is
susceptible to a review. I have further had
regard to the founding affidavit in support of the review
application. In less than
half a page
[10]
,
Makwe’s contentions boil down to a summary of the evidence
presented by two of the individual applicants. It was further
contended that the applicants challenge Joburg Market’s
decision to employ them on fixed term contracts; that the termination
of the contracts when some of the applicants had longer service gave
rise to an automatically unfair dismissal, and a prayer that
they
should be reinstated. Nowhere in the application is it indicated on
what grounds contemplated under either section 145 or
section 158 of
the LRA is the arbitration award of the Commissioner challenged.
[15]
I have also had regard to the
award of the Commissioner. In his analysis, the Commissioner had
pointed out most or all of the individual
applicants were employed at
varying periods on fixed terms contracts between August 2014 and
March 2015. The Commissioner
concluded, having heard the
evidence, that the applicants had ‘dismally’ failed to
show any reasonable expectation
that they would be permanently
employed upon the expiry of their fixed term contracts. The
Commissioner had summed up the applicants’
basis of any
expectation as spurious, as they knew that the contracts would come
to an end in March 2015. In the Commissioner’s
words, the
applicants had nothing more than hope that the fixed term contracts
would be renewed or that they would be retained
on a permanent basis.
[16]
It is only in the written heads
of argument that any reference was made by the applicants to
‘irregularities’, and even
then, it is not pointed out in
what respects it was contended that the Commissioner had committed
any irregularity, or why the
award of the Commissioner should be
deemed to be one that a reasonable decision maker could not have
made.
[17]
As at the hearing of
these proceedings, a supplementary affidavit or a notice in terms of
Rule 7A(8)(b) of the Rules of this
Court had still not been
filed despite a record of proceedings having been filed. In the light
of a case for a review of the Commissioner’s
arbitration award
not having been made out on the applicants’ own pleadings, it
follows that there is no basis for a conclusion
to be reached that
they have demonstrated any prospect of success in respect of the
merits of the main application.
Other
considerations and conclusions:
[18]
Joburg Market contends that it
would suffer prejudice if condonation were to be granted because of
the lengthy period it had taken
for the applicants to comply with the
Rules of this Court, particularly since some of its witnesses who had
testified in the arbitration
proceedings have since left its employ.
The applicants merely alleged that they would suffer prejudice.
However, no basis is laid
for that contention.
[19]
Having had regard to all
factors to be considered in this application, it is my view that in
circumstances where the delay in bringing
the review application was
excessive in the extreme; where the applicants further failed to
correct the defect timeously when made
aware of it; the grossly
inadequate explanation proffered for the delay; the patently weak
prospects of success, and obvious prejudice
to Joburg Market, it
would neither be in the interests of justice nor the interests of the
effective administration of justice
to grant condonation.
[20]
In respect of costs, it is
trite that this Court takes into account the requirements of law and
fairness. Having considered the
circumstances of this case and those
of the individual applicants, I do not deem it appropriate to make
any order as to costs.
[21]
Accordingly, the following
order is made;
Order:
1.
The application for condonation
for the late filing of the applicants’ application for review
is dismissed.
2.
The applicants’
application for a review of the arbitration award issued under case
number GAJB9285/15 by the first
respondent dated
13 October 2015 is dismissed.
3.
There is no order as to costs.
____________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants: Mr JM Mthembu of UCEMISHAWU
For
the Third Respondent: Mr E Kobese of Clyde & Co
[1]
Act 66 of 1995 (as amended)
[2]
1962
(4) SA 531
(A) At 532b-E, where the Court held that;
‘
In deciding whether sufficient
cause has been shown, the basic principle is that the Court has a
discretion, to be exercised judicially
upon a consideration of all
the facts, and in essence it is a matter of fairness to both sides.
Among the facts usually relevant
are the degree of lateness, the
explanation therefor, the prospects of success and the importance of
the case. Ordinarily these
facts are interrelated, they are not
individually decisive, save of course that if there are no prospects
of success there would
be no point in granting condonation. Any
attempt to formulate a rule of thumb would only serve to harden the
arteries of what
should be a flexible discretion. What is needed is
an objective conspectus of all the facts. Thus a slight delay and a
good explanation
may help to compensate prospects which are not
strong. Or the importance of the issue and strong prospects may tend
to compensate
for a long delay. And the Respondent’s interests
in finality must not be overlooked”
[3]
[2000] ZACC 3
;
2000 (5) BCLR 465
;
2000 (2) SA 837
(CC) at para 3; See also
Ndlovu
v S
2017 (10) BCLR
1286
(CC);
2017 (2) SACR 305
(CC) (15 June 2017) at paras 22 –
23;
Van
Wyk
v
Unitas Hospital (Open Democratic Advice Centre as amicus curiae)
[2007] ZACC 24
;
2008
(2) SA 472
(CC)
at
477A-B;
SA
Post Office Ltd v CCMA
[2012]
1 BLLR 30
(LAC) at para [23], where Waglay DJP (as he was
then) stated that;
‘
In my view,
each condonation application must be decided on its own facts
bearing in mind the general criteria. While the rules
are there to
be applied, they are not inflexible but the flexibility is directly
linked to and apportioned in accordance with
the interests of
justice; prejudice; prospects of success; and finally, degree of
delay and the explanation thereof. The issue
of delay must be viewed
in relation to the expedition with which the law expects the
principal matter to be resolved’
[4]
Mulaudzi v Old
Mutual Life Assurance Company (South Africa) Limited
2017 (6) SA 90
(SCA) at para 6
[5]
Ndlovu v S
at para 31
supra at fn 3
[6]
See
All
Round Tooling (Pty) Ltd v NUMSA
(1998)
8 BLLR 847
(LAC);
Rennie
V Kamby Farms (Pty) Ltd
1989
(2) SA 124
(A) At 129G where it was held:
'whenever an appellant realises that
he has not complied with a rule of court he should apply for
condonation without delay.'
See
also
Mulaudzi
at
para 26
[7]
(2014) 1 BLLR
1
(CC);
2014
(2) SA 68
(CC);
2014 (1) BCLR 65
(CC); (2014) 35 ILJ
121 (CC) at paragraphs 50 - 51
[8]
Gaoshubelwe and
Others v Pieman's Pantry (Pty) Ltd
2009
30 ILJ 347 (LC) at para 27;
Seatlholo
& others v Entertainment Logistics Service (A division of Gallo
Africa Ltd)
(2011) 32 ILJ
2206 (LC) para 24
[9]
Supra
fn 5
at
para [34]
[10]
Pages 17 –
18 of Index to Pleadings/ Pages 5 -6 of ‘Index and
Paginations’