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[2018] ZALCJHB 376
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Super Group (Pty) Ltd t/a Super Group Supply Chain Partners v Mbovane NO and Others (JR1922/08) [2018] ZALCJHB 376 (13 November 2018)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 1922/08
In
the matter between:
SUPER
GROUP (PTY) LTD T/A SUPER
GROUPSUPPLY
CHAIN PARTNERS Applicant
and
BONISA
MBOVANE N.O
First Respondent
NATIONAL
BARGANINING COUNCIL FOR
THE
ROAD FRIGHT INDUSTRY
Second Respondent
CEPPWAWU
OBO DLAMINI AND OTHERS
Third
Respondent
Heard:
17 May 2018
Delivered:
13 November 2018
JUDGMENT
LALLIE,
J
[1]
This is an
application to review and set aside a ruling in which the first
respondent (the arbitrator) refused to rescind an award
she granted
against the applicant. It is opposed by the individual third
respondents (the respondents).
[2]
The
respondents filed their answering affidavit late and applied for
condonation. The condonation application is opposed by the
applicant.
The respondents submitted that their answering affidavit was filed
late by 34 months and 3 days. The reasons they proffered
for the
delay are that the third respondent trade union, CEPPWAWU (the union)
advised them that there was no use in opposing their
review
application as the matter would, in all probability be remitted to
the second respondent for arbitration. A further reason
was that the
union told them that it had no money to spend on opposing the review
application. The review application was served
on the union on 26 May
2009. After the respondents accepted that their attempts to get
assistance from their trade union were unsuccessful,
they parted ways
with it in December 2011. They sought assistance from the firm of
attorneys which is representing them in this
matter in January 2012
and it launched an application to make the rescission ruling an order
of court in March 2012. It realized
in April 2012 upon receipt of
opposition to their application that the review application had been
launched and took the necessary
steps which culminated in the filing
of the answering affidavit. The respondents submitted that they have
excellent prospects of
success and that the delay will not prejudice
the applicant.
[3]
The test
for condonation is stated as follows in
Grootboom
v National Prosecuting Authority and Another
[1]
:
‘
It
is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case entitling it
to the
court’s indulgence. It must show sufficient cause. This
requires a party to give a full explanation for the non-compliance
with the rules or court’s directions. Of great significance,
the explanation must be reasonable enough to excuse the default’.
The
respondents’ main reason for filing their answering affidavit
late is that they were denied assistance by their trade
union. A
delay of 34 months and 3 days is excessive and requires reasonable
explanation.
[4]
The default
award reinstating the respondents was issued on 17 June 2008. The
ruling refusing to rescind the award was issued on
16 August 2008. By
their own admission, the respondents were informed by the union of
its decision and reasons for not assisting
them to oppose the
rescission and review application. If the respondents were committed
in opposing the review application as they
believed that they had an
excellent case they should have sought alternative assistance within
reasonable time. They cannot use
the failure of their chosen
representative, the trade union, as a defence against the
consequences of the delay. Their ignorance
of the relevant time
frames cannot assist them to explain the delay of 34 months and 3
days because at all material times they
knew that they needed
assistance to be reinstated in terms of the default award. They sat
on their rights at their own peril.
[5]
The
applicant did not establish their allegation of good prospects of
success in the main application as they failed to make averments
which, if proved, would lead to their success in the rescission
application. The respondents provided no reasonable explanation
for
the excessive delay of 34 months and 3 days. They also have no
prospect of success. Their condonation application cannot succeed.
[6]
The
circumstances leading to the issuing of the ruling under review are
that after receiving the default award reinstating the respondents,
the applicant filed an application to have the award rescinded. The
applicant relied on 2 reasons, namely, that it did not receive
the
notice to attend the arbitration and that it had good prospects of
success in the unfair dismissal dispute. The rescission
application
was unopposed and the arbitrator decided it on the papers. She
rejected the applicant’s explanation for the default
on the
basis that having perused the file she noted that all the
correspondence between the applicant and the second respondent
was
conveyed through the same fax number used to send the notice to
attend the arbitration. She concluded that mere denial of receiving
the notice of set down without plausible reasons does not constitute
a good ground for rescission. The arbitrator’s finding
on
prospects of success was that the applicant failed to seize the
opportunity of defending its case.
[7]
The
applicant’s main grounds for review are that the ruling is
defective as envisaged in section 145 (2) of the Labour Relations
Act
[2]
(the LRA) because the
arbitrator committed gross irregularities in the conduct of the
arbitration, made an error of law in considering
the rescission
application and reached an unreasonable decision. The applicant
relied on the arbitrator’s omission to consider
its
bona
fide
defence.
[8]
The test
for review based on errors made by arbitrators in the conduct of
arbitrations is settled. It is expressed as follows in
Department
of Education v Mofokeng & Others
[3]
:
‘…
Lapses
in lawfulness, latent or patent irregularities and instances of
dialectical unreasonableness should be of such an order (singularly
or cumulatively) as to result in a misconceived inquiry or a decision
which no reasonable decision-maker could reach on all the
material
that was before him or her.’
[9]
The first
leg of the test requires the establishment whether the arbitrator
made an error. The applicant’s averments that
the arbitrator
made an error. The applicant’s averments that the arbitrator
erred are true because in determining rescission
application two
factors need to be taken into account. They are: whether the
applicant was in wilful default and whether the applicant
has a
bona
fide
defence. The arbitrator did not consider the applicant’s
defence at all. Section 138(1) of the LRA enjoins arbitrators to
deal
with the substantial merits of disputes before them. The arbitrator
failed to deal with the substantial merits of the issue
before her
when she failed to apply the full test for rescission. The applicant
submitted that had the arbitrator applied the test
for rescission
correctly, she would have reached a different decision as it had
shown a
bona
fide
defence which was unopposed. The arbitrator misconceived the dispute
by conducting the enquiry incorrectly. Her ruling therefore
stands to
be reviewed and set aside.
[10]
In the
premises, the following order is made:
Order
1.
Condonation
of the late filing of the answering affidavit is refused.
2.
The
rescission ruling issued by the first respondent under case number
GPRFBC2017 dated 16 August 2008 is reviewed and set aside.
3.
The matter
is remitted to the second respondent for the rescission application
to be determined
de
novo
by
an arbitrator other than the first respondent.
4.
The
application in terms of section 158(1)(c) of the LRA is dismissed.
Z
Lallie
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate Snider
Instructed
by:
Fluxmans Incorporated
For
the Respondent: Mr Goldberg of Goldberg Attorneys
[1]
2014 [1] BLLR 1 (CC) at para 23.
[2]
66 of 1995, as amended.
[3]
(2015) 36 ILJ 2802 (LAC) at para 32.