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[2018] ZALCCT 12
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Parliament of the Republic of South Africa v Commission for Conciliation, Mediation and Arbitration and Others (C646/16) [2018] ZALCCT 12 (24 April 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
no: C 646/16
In
the matter between:
PARLIAMENT
OF THE REPUBLIC OF SOUTH AFRICA
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION AND
ARBITRATION
1
st
Respondent
ARTHI
SINGH-BHOOPCHAND
N.O
2
nd
Respondent
S
MOHAMED
N.O
3
rd
Respondent
CECILIA
BRÜMMER
N.O
4
th
Respondent
JOYCE
NTULI
5
th
Respondent
RESPONDENTS LISTED IN
ANNEXURE “A”
6
th
–
Further Respondents
Heard:
13 September 2017
Delivered:
24 April 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The fifth to further
respondents are employed as Researchers in the research unit of the
Parliament of the Republic of South Africa
(Parliament)
[1]
.
Parliament, which is the applicant in this matter, seeks an order
reviewing and setting aside a condonation ruling and an arbitration
award issued under the auspices of the CCMA. The condonation ruling
was issued on 16 February 2016 by the second respondent
Commissioner A. Singh-Bhoopchad, wherein she had condoned the late
referral of the unfair labour practice dispute to the CCMA by
the
Researchers. The dispute had been referred to the CCMA five years
outside the time limits provided for in terms of the provisions
of
the Labour Relations Act (LRA).
[2]
[2]
The third respondent, Commissioner Mohammed issued a certificate of
outcome on 23 March 2016, after condonation was granted.
The matter
came for arbitration before
the fourth respondent,
Commissioner Cecelia Brümmer.
Parliament seeks an order
reviewing and setting aside her arbitration award dated 2 September
2016, in terms of which it was found
that Parliament had committed an
unfair labour practice against the Researchers. An order was made
that compensation in a sum of
R38 481 366.00 (Thirty-Eight
Million Four Hundred and Eighty-One Thousand Three Hundred and
Sixty-Six Thousand Rand Only)
be paid to all 49 Researchers.
Parliament was further ordered to implement a decision to re-grade
the affected Researchers.
[3]
The review application is opposed by the Researchers.
Background:
[4]
During 2008, Parliament through its
Job Evaluation
Committee (JEC)
embarked on a job evaluation exercise of the
grades allocated to various positions, including those of
Researchers. This exercise
involved Researchers having to answer
questions pertaining to the content of their jobs, their roles and
responsibilities. The
grading of the Researchers was benchmarked at
salary level C3.
[5]
On 19 April 2010, the JEC completed its evaluation and
concluded that the position of Researchers should remain at
salary
level C3. A grading certificate in terms of parliament policies was
then issued in April 2010. The Researchers and NEHAWU
having been
informed of the decision and aggrieved by it, launched an appeal with
the Job Evaluation Audit Committee (JEAC) in
June 2010. The JEAC
confirmed the decision of the JEC.
[6]
In an internal memorandum dated 9 December 2010, Ms N.P
Keswa (Kwesa) the then Manager: Legislation and Oversight
Division
(LOD), sought approval from the then Secretary of Parliament
(Dingani) to review the final grading of the Researchers.
[7]
On 13 December 2010, the late Mr Coetzee, who was the then
Acting Secretary of Parliament signed the internal memorandum
authored by Kwesa on behalf of Dingani and indicated that the
re-grading of all parliamentary research positions should be approved
from C3 level to C4 level. The Researchers’ contention is
that this decision was communicated to them by the late Coetzee
during December 2010.
[8]
On 2 June 2011, Dr S Paruk the Human Resource Executive in
a memorandum addressed to the Secretary of Parliament,
Dingani,
expressed the view that a review of a job description does not
necessarily translate into a change in the job grade, but
that it
demonstrated a shift in the job focus. He further recorded that the
shift in the job focus had been considered in the job
grading process
and it had not resulted in an increase in the complexity of the work
specifically. In the result, his department
was satisfied that due
process had been followed and the position of Researchers had been
graded accurately.
[9]
In a letter dated 15 June 2011, Parliament addressed a
letter to one of the Researchers advising them that in its
view, the
JEAC committee had properly applied its mind to the issue of job
grading of Researchers and therefore Parliament correctly
held the
view that Researchers were properly graded at salary level C3.
[10]
Central to the dispute between the parties is whether a decision had
in fact been taken by Parliament to re-grade their salary
from C3 to
C4, flowing from the memorandum authored by Keswa and ostensibly
approved by Coetzee. The second issue is whether Parliament
as the
employer had failed to implement that decision. The third is whether
Parliament had committed an unfair labour practice
by failing to
implement the purportedly approved re-grading.
The
application for condonation:
[11]
On 14 January 2016, the Researchers referred an unfair labour
practice dispute to the CCMA, contending that the dispute arose
on
13 December 2010. The referral was accompanied by an
application for condonation, with the affidavit having been deposed
to by the fifth respondent, Ms Joyce Ntuli, who made the following
averments;
11.1.
Because of their appeal to the JEAC being unsuccessful [in 2010],
they had petitioned
Parliament in or about 2010 to review both the
decision of the JEC and the JEAC.
11.2.
In December 2010, the matter was forwarded to the Acting
Secretary to Parliament
for his consideration. The Acting Secretary
of Parliament agreed with the Researchers’ contention that they
were incorrectly
graded at level C3 and further that there was merit
in their review of the grading outcome. Consequently, a decision was
taken
to grade them at grade C4. On 13 December 2010, the
LOD Manager and the Acting Secretary to Parliament approved the
re-grading
of the Researchers from grade C3 to C4.
11.3.
The Decision to re-grade them was formally communicated to them in
December 2010.
They were subsequently informed that despite the
re-grading and its approval, a moratorium had been placed on all C4
and C5 level
positions. Despite requests, the full details of
the moratorium have not been made available to them.
11.4.
Since the dispute arose on 13 December 2010, their union
(NEHAWU) had on numerous
occasions attempted to make representation
to Parliament to try resolve the impasse. It had always been their
intention to resolve
the internally.
11.5.
They further alleged they were not familiar with dealing with matters
such as the one
at hand, or the time periods prescribed by the LRA.
11.6.
In the alternative, they argued that the matter was not an ordinary
dispute, in that it
was a continuing unfair labour practice. The time
periods required by the LRA would therefore not find application and
condonation
would therefore be unnecessary.
11.7.
If condonation was deemed necessary, such lateness should be excused
because non-compliance
was not due to intent but rather to ignorance
of the requirements of the LRA.
11.8.
They submitted that they had prospects of success since the refusal
by Parliament to implement
the regarding constituted an unfair labour
practice.
[12]
Parliament had opposed the application for condonation. In the
opposing affidavit deposed to by Mpumelelo Tabata, the Employee
Relations Practitioner at Parliament, the following averments were
made;
12.1
The degree of lateness in referring the dispute was six years which
was excessive
as conceded by the Researchers. Given the extent of the
delay, the explanation proffered in that regard was frivolous and did
not
constitute grounds for condonation. There were no acceptable
reasons provided by the Researchers for the delay, despite being
represented
by 16 NEHAWU shop stewards at all times, who ought to
have been aware of the legal requirements in the LRA.
12.2
The Researchers had not provided any factual basis for contending
that they
had any prospects of success on the merits, and moreso, the
issue in dispute did not pertain to an unfair labour practice, and
thus the CCMA lacked the requisite jurisdiction to hear the dispute
even if condonation was granted.
12.3
In regard to prejudice, it was contended that the issue related to a
job grading
that was not approved since there was a moratorium in
place in the positions at C4 and C5 levels. Thus, having to defend
the matter
would entail unnecessary spending of public funds and
resources, and the matter had no bearing on the public interest, nor
was
it of importance.
The
ruling and the review:
[13]
This Court accepts that when
considering applications for condonation, Commissioners enjoy a wide
discretion
[3]
,
and the Courts should be cautious when interfering with decision
arrived at by Commissioners in the light of that wide discretion
[4]
.
[14]
The applicable test before the Court can interfere with a
Commissioner’s discretionary decision is whether or not it
can
be said that the discretion was exercised “capriciously, or
upon a wrong principle, or in a biased manner, or for insubstantial
reasons. Thus, the test is whether the Commissioner committed a
misdirection, an irregularity, or failed to exercise his or her
discretion, or exercised it improperly or unfairly.”
[15]
In
Coates
Bros Ltd v Shanker and Ors
[5]
,
it was emphasised that a simple misdirection is insufficient, and
that such misdirection must be of such a nature, degree or
seriousness that shows that the discretion was not exercised at all
or was exercised improperly or unreasonably
[6]
.
[16]
The factors to be considered in
applications for condonation are well-known as set out in
Melane
v Santam Co Ltd
[7]
and other subsequent
authorities. In this case, the Commissioner took note of those
factors, and further appreciated that she had
a discretion in the
matter having had regard to those factors, and the interests of
justice. Having analysed how those factors
were interrelated, the
Commissioner concluded that;
16.1.
The degree of lateness was excessive.
16.2.
The delay was excusable as the Researchers were persistent in having
the dispute resolved
internally as evident from numerous meetings
that took place between the Secretary of Parliament and the HR
Executive. These meetings
might have given the Researchers some sense
of hope that the dispute may be resolved.
16.3.
Taking into account that there was an on-going relationship between
the Researchers and
Parliament, the Commissioner held that it was
understandable that the Researchers were keen to have the dispute
resolved internally,
rather than making use of external dispute
resolution mechanism.
16.4.
In any event held the
Commissioner, the Researchers would not have been able to refer the
dispute in 2010, because the definition
of the term ‘unfair
labour practice’ was different then. It was only in 2013 that
the Labour Appeal Court
[8]
expanded the meaning of the word “benefits” to include
disputes relating to job grading. The CCMA therefore had jurisdiction
to determine the dispute.
16.5.
The Commissioner further held that the Researchers had laid out a
prima facie
case which demonstrated some prospects of success,
and Parliament would not suffer any prejudice if condonation was
granted, and
further since it was in the interest of justice that
condonation be granted.
The
grounds of review and evaluation:
[17]
Prior to dealing with the
merits of the review application, it is important to highlight that
one of the issues raised on behalf
of the Researchers in opposing the
review application was that of peremption. In this regard, the
argument was that the condonation
ruling was issued on 15 February
2016, and that since the arbitration proceedings commenced on 19 May
2016, Parliament took no
steps to have the condonation ruling
reviewed and set aside. It was contended that Parliament acted in a
manner which reasonably
induced the belief that it had acquiesced in
that ruling. Reliance in this regard was placed on
NUMSA
& others v Fast Freeze
[9]
.
[18]
As correctly pointed out on behalf of Parliament in these
proceedings, a defence of peremption in this instance is clearly
misplaced in the light of the provisions of section 158 (1B) of the
LRA, which provide that;
‘
The
Labour Court may not review any decision or ruling made during
conciliation or arbitration proceedings conducted under the auspices
of the Commission or any bargaining council in terms of the
provisions of this Act before the issue in dispute has been finally
determined by the Commission or the bargaining council, as the case
may be, except if the Labour Court is of the opinion that it
is just
and equitable to review the decision or ruling made before the issue
in dispute has been finally determined.’
[19]
There is no reason in my view, why condonation rulings ought not to
fall under the parameters of the above provisions. It is
understandable that a ruling in terms of which condonation is granted
opens the gateway for an arbitration. Even if the aggrieved
party in
the condonation ruling elects to partake in arbitration proceedings
which may ultimately prove to be a nullity if it were
to be found on
review that condonation ought not to have been granted, that is a
choice that a party makes, given the stringent
approach of this court
when determining whether it is just and equitable to entertain any
such application midstream proceedings
before the CCMA.
[20]
Peremption has its origin in
policy considerations similar to those of waiver and estoppel. The
question of acquiescence does not
however involve an enquiry into the
subject of state of mind of the person alleged to have acquiesced in
a judgment or order. It
involves a consideration of the objective
conduct of such person and the conclusion to be drawn therefrom
[10]
.
[21]
In a case such as the one before the Court, a party that elects to
wait until the arbitration proceedings have been finalised
even if
aggrieved by a condonation ruling cannot however objectively be
accused of having acquiesced in that ruling, simply because
steps
were not taken immediately after the ruling was issued. Other than
the restrictive provisions of section 158 (1B) of the
LRA, a
condonation ruling like other interlocutory rulings does not
necessarily
bring an end to the main dispute for the purposes
of a defence of peremption, which usually involves a final court
order, compelling
a party to do certain things. Thus, a party that
elects not to contest a condonation ruling at the CCMA pending the
finalisation
of the arbitration proceedings is protected by the
provisions of section 158 (1B) of the LRA for the purposes of
challenging that
ruling at a later stage.
[22]
In regard to the ruling itself, Parliament takes issue with the
approach of the Commissioner in condoning the late referral,
contending that the ruling was unreasonable and ought to be set aside
upon a consideration of the factors that the Commissioner
ought to
have considered.
[23]
In regard to the degree of lateness, it was pointed out on behalf of
Parliament that the referral of the dispute was five years
late since
it arose on 13 December 2010 and the matter was brought to
the CCMA initially on 1 December 2014.
[24]
The Commissioner agreed that
the delay was excessive. This however was not the end of the matter,
as in my view, the delay was excessive
in the
extreme
.
In those circumstances, a reasonable and acceptable explanation was
required of the Researchers, failing which that would have
been the
end of the matter, even upon a consideration of the interests of
justice
[11]
.
This principle is premised on
inter
alia
, the objectives of the
LRA, which call for expeditious resolution of labour disputes, and
the prejudice caused by the delay in
referring disputes.
[25]
Just to re-emphasise the above
point, the Labour Appeal Court in
Colett
v Commission for Conciliation, Mediation & Arbitration &
others
[12]
held 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 532C–D should be
followed, but — "[t]here is a further principle which is
applied and that is 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"
[13]
.
And,
“
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.”
[14]
[26]
Considering
that an application for condonation is effectively a request for an
indulgence, in instances where a delay in referring
a dispute is
excessive in the extreme as in this case, other than the fact that a
reasonable and acceptable explanation must be
given, there is a
further requirement on a party to give a full account of each period
of the delay
[15]
.
[27]
The explanation proffered by the Researchers before the Commissioner
as correctly pointed out on behalf of Parliament is unsatisfactory
and amounts to no explanation at all. The explanation was
three-pronged. The first was that attempts were being made by the
Researchers
through their Union to resolve the matter and that they
were hopeful that a resolution would be found based on those attempts
and
meetings held between the
Secretary of
Parliament and the HR Executive. The Researchers had also relied upon
some letters sent to the Secretary of Parliament
and reference was
made to Annexure ‘A’, which is correspondence from
NEHAWU. A copy of this correspondence is not legible,
but it is
apparent that it was sent sometime in 2013. As far as the application
for condonation before the Commissioner was concerned,
this was the
only copy or proof of any attempts being made to resolve the matter
internally. Nothing else was placed before the
Commissioner. There
was no indication in the founding affidavit to explain what those
attempts were, when they were made and whether
they had any outcome
to the extent that the Commissioner and the Researchers formed a firm
believe that a resolution would be found.
The Commissioner could only
deal with what was presented before her and based on the averments
made in the founding affidavit,
and in the absence of a replying
affidavit, it is apparent that her conclusions that the Researchers
were persistent in their attempts
to resolve the dispute amicably
were not based on discernible facts placed before her.
[28]
The evidence of ‘numerous meetings’
was equally not placed before her, and the fact that there was an
on-going relationship
between the parties was hardly a factor to be
relied upon in hoping that a resolution would be found or in
concluding that the
excessive delay was excusable. It follows that
the Researchers had not even come close to giving a full account of
the delay, and
the Commissioner’s conclusions in this regard
were predicated on unsubstantiated reasons.
[29]
A second explanation which the Commissioner failed to address was
that the Researchers were not familiar with the time statutory
time
periods. This excuse was fatal to the Researchers’ case, as it
was made in circumstances where they were represented
by NEHAWU, a
reputable union which is well familiar with the requirements outlined
in the LRA throughout their dispute internally.
It is trite that
ignorance of legal requirements especially in circumstances where
employees are represented by a union or a firm
of attorneys can
hardly pass as an excuse. This explanation or excuse amounts to no
explanation at all, and the Commissioner for
some strange reason
conveniently failed to deal with it. Had she done so, it is unlikely
that she would have found that the delay
was excusable.
[30]
A third excuse if it may be called that was that the dispute between
the parties was not one involving an ‘ordinary unfair
labour
practice’ but ‘a continuing unfair labour practice’
and therefore the time periods were not applicable,
making it
unnecessary to seek condonation. The Commissioner equally failed to
deal with this lame explanation.
[31]
There is nothing called a ‘continuing unfair labour practice’
for the purposes of compliance with applicable time
limits. The
provisions of section 191 (1) (b) (ii) of the LRA requires a dispute
to be referred within 90 days of the date of the
act or omission
which allegedly constitute the unfair labour practice, or if it is a
later date, within 90 days of the date on
which the employee became
aware of the act or occurrence. Thus, even if conduct or a dispute is
on-going, it must have some form
of conception from which the 90 days
can be calculated. A dispute cannot simply be on-going from nowhere.
[32]
The Commissioner also appears to have been persuaded in her
conclusions by the Researchers’ contentions that prior to
the
decision in
Apollo Tyres South Africa (Pty) Ltd
, the
Researchers would not have in any event been able to refer the
dispute as the definition of unfair labour practice at the
time was
restrictive. This contention is a misapplication of the law. A
dispute for the purposes of compliance with applicable
time limits
does not gain traction or impetus from a new or different
interpretation of the law by the Labour Appeal Court. It
defies logic
to contend that an alleged unfair labour practice dispute that was
not referred for resolution five years ago can
now be referred simply
because of a different interpretation of the law. A new or different
interpretation of the law does not
resuscitate old disputes. Other
than this absurdity, the Commissioner nonetheless still failed to
consider the failure to explain
the delay between February 2013 when
the judgment relied upon was delivered and January 2016 when the
dispute was ultimately referred.
[33]
Other than the unexplained delays, it was common cause that the
Researchers had initially referred the same dispute in December
2014
and withdrew it. They had again referred the dispute in November 2015
and as it was defective it was not determined. No attempt
was made to
explain the reasons the initial referral was not pursued with the
same vigour as the new one and again, the Commissioner
omitted to
take these factors into account. There is therefore merit in
Parliament’s contentions that the Researchers’
approach
was not akin to serious litigants who genuinely required the
assistance of our dispute resolution institutions, and the
Commissioner sadly failed to appreciate this lackadaisical approach.
[34]
In the light of the above, it follows that on the authorities
referred to elsewhere in this judgment, there was no need for
the
Commissioner to even determine whether the Researchers had any
prospects of success on the merits. In circumstances where a
delay in
referring a dispute is excessive in the extreme, a further important
consideration is that of prejudice to the parties.
The Commissioner
rejected Parliament’s contentions that it would suffer
prejudice should condonation be granted. This was
in circumstances
where the Researchers had simply stated in the founding affidavit in
support of the application that ‘
the prejudice which will be
suffered by myself together with other applicants far outweighs that
which will be suffered by the Respondent’
. Clearly there is
an even greater duty to explain the alleged prejudice instead of
simply making an allegation in that regard in
broad and vague terms.
Parliament had specifically contended that the issue related to a job
grading that was not approved since
there was a moratorium in place
in the positions of C4 and C5, and that having to defend the matter
would have entailed unnecessary
spending of public funds and
resources, as the matter had no bearing on the public interest, nor
was it of importance.
[35]
The nature of the dispute as found by the Commissioner is not the
only consideration of whether a party would suffer prejudice
if
delays were to be condoned or not. The issue is whether compelling
Parliament to defend a matter which was five years old, and
which the
Researchers had not shown any seriousness in pursuing would have
caused prejudice to it, and whether it would have been
in the
interests of justice not to grant condonation in those circumstances.
The answer should have been a resounding yes, especially
in
circumstances where the Researchers had
inter alia
, not
explained the nature of the prejudice they stood to suffer if
condonation was refused. As it turned out, because of the delays
in
referring the dispute, Coetzee, who purportedly signed off the
approval for re-grading has since passed on, and to further expect
Parliament to have put up a defence to the Researchers’ claim
in circumstances where they were the authors of the delay would
have
been unreasonable and unfair.
[36]
On a consideration of all the facts before the Commissioner at the
time, it follows that the most reasonable outcome upon a
consideration of the overall interests of justice would have been to
refuse to grant condonation. It therefore follows that in
exercising
her discretion to grant condonation, the Commissioner committed a
misdirection which is of such a nature, degree and
seriousness that
shows that her discretion was exercised not only improperly, unfairly
and unreasonably, but also upon wrong principles
and for
insubstantial reasons. In the circumstances, it follows that the
condonation ruling ought to be set aside, and I am satisfied
that
upon the material that was placed before the Commissioner, the Court
is in a position to substitute that ruling. No purpose
would be
served by remitting the matter back to the CCMA for reconsideration.
My conclusions and approach therefore imply that
the CCMA would have
lacked jurisdiction to determine the main dispute. This therefore
makes the subsequent award of Commissioner
Brümmer a nullity,
making it unnecessary for the court to determine the merits of its
review application.
[37]
I have further had regard to the requirements of law and fairness,
which in my view dictates that a cost order should not be
warranted
in this case. Accordingly, the following order is made;
Order:
1.
The applicant is absolved from furnishing security in respect
of the
review application.
2.
The condonation ruling issued by the second respondent under
case
number WECT705-16 dated 15 February 2016 is reviewed, set aside and
substituted with the following order;
‘
The application for condonation
for the late referral of an alleged unfair labour practice dispute
brought by the Employees/Researchers
is dismissed, and the Commission
for Conciliation, Mediation and Arbitration lacks jurisdiction to
determine the main dispute.’
3.
The arbitration award issued by the fourth respondent under
case
number WECT705-16 dated 2 September 2016 is set aside on the grounds
of it being a nullity.
4.
There is no order as to costs.
_____________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
P. Kennedy SC
Instructed
by:
Haffegee Roskam Savage Attorneys
For
the 5
th
, 6
th
– Further
Respondents:
Adv. M. Ngumbela
Instructed
by:
Mvana van Rensburg & Associates
[1]
The Parliament of the Republic of South Africa established in terms
of Chapter 4 of the Constitution of the Republic of South
Africa
(Act 108 of 1996)
[2]
Act 66 of 1995, as amended
[3]
Motloi v
SA Local Government Association
[2006] 3
BLLR 264
(LAC) para
[16]
[4]
NUMSA v
Fibre Flair cc t/a Kango Canopies
(2000) 21 ILJ 1079 [LAC] 1081 at G-1082A
[5]
(2003) 24 ILJ 2284 [LAC]
[6]
See also
Cowley
v Anglo Platinum & others
JR 2219/2007;
[2016] JOL 35884
(LC) at para 21, where it was held
that;
“…
when
the Commissioner is endowed with a discretion this court will be
very slow to interfere with the exercise of that discretion.
The
Commissioner’s exercise of discretion would be upset on the
review if the applicant shows, inter alia, that the Commissioner
committed a misdirection or irregularity, or that he or she acted
capriciously, or on the wrong principle or in bad faith or
unfairly
or that the exercise seeing the discretion the Commissioner reached
a decision that a reasonable decision-maker could
not reach.”
[7]
1962 (4) SA 531
(A)
at
532B-E., where it was 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, for that would be a piecemeal approach
incompatible with a true discretion,
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 for prospects of success which
are not strong. Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the
respondent’s interest in
finality must not be overlooked. I would add that discursiveness
should be discouraged in canvassing
the prospects of success in the
affidavits. I think that all the foregoing clearly emerge from
decisions of this Court, and therefore
I need not add to the
ever-growing burden of annotations by citing the cases.”
[8]
Apollo
Tyres South Africa (Pty) Ltd v CCMA & others
[2013] 5 BLLR 434
(LAC); (2013) 34 ILJ 1120 (LAC)
[9]
(1992) 13 ILJ 963 (LAC) at page 969 where it was held that;
'If a party to a judgment acquiesces
therein, either expressly, or by some unequivocal act wholly
inconsistent with an intention
to contest it, his right of appeal is
said to be perempted, ie he cannot thereafter change his mind and
note an appeal. Peremption
is an example of the well-known principle
that one may not approbate and reprobate, or, to use colloquial
expressions, blow hot
or cold, or have one's cake and eat it.'
[10]
See
Qoboshiyane
NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others
2013 (3) SA 315
(SCA) at 318.
[11]
See
Grootboom
v National Prosecuting Authority and Another
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC);
[2014] 1 BLLR 1
(CC);
(2014) 35 ILJ 121 (CC) at para 50 - 51, where Zondo J (as he then
was) in a dissenting judgment held that;
‘
Although
the existence of the prospects of success in favour of the party
seeking condonation is not decisive, it is an important
factor in
favour of granting condonation.
The interests of justice must be
determined with reference to all relevant factors. However, some of
the factors may justifiably
be left out of consideration in certain
circumstances. For example, where the delay is unacceptably
excessive and there is no
explanation for the delay, there may be no
need to consider the prospects of success. If the period of delay is
short and there
is an unsatisfactory explanation but there are
reasonable prospects of success, condonation should be granted.
However, despite
the presence of reasonable prospects of success,
condonation may be refused where the delay is excessive, the
explanation is
non-existent and granting condonation would prejudice
the other party. As a general proposition the various factors are
not individually
decisive but should all be taken into account to
arrive at a conclusion as to what is in the interests of justice’
See
also
Moila v Shai N.O and Others
(2007) 28 ILJ 1028 (LAC) at
para 34, where it was held that;
‘
I do not
have the slightest hesitation in concluding that this is a case
where the period of delay is excessive and the appellant's
purported
explanation for the delay is no explanation at all. I accept that
the case is very important to the appellant. However,
the weight to
be attached to this factor is too limited to count for anything
where the period of delay is as excessive as is
the case in this
matter and the explanation advanced is no explanation at all. If
ever there was a case in which one can conclude
that good cause has
not been shown for condonation without even considering the
prospects of success, then this is it. Where,
in an application for
condonation, the delay is excessive and no explanation has been
given for that delay or an “explanation”
has been given
but such “explanation” amounts to no explanation at all,
I do not think that it is necessary to consider
the prospects of
success.’
[12]
(2014) 35 ILJ 1948 (LAC); [2014] 6 BLLR 523 (LAC)
[13]
At para 38
[14]
At para 39
[15]
See
NUMSA & another v
Hillside Aluminium
[2005] ZALC 25
;
[2005]
6 BLLR 601
(LC) at para 12, where it was held that;
“
Additionally, there should be
an acceptable explanation tendered in respect of each period of
delay. Condonation is not there
simply for the asking. Applications
for condonation are not a mere formality. The onus rests on the
applicant to satisfy the
court of the existence of good cause and
this requires a full, acceptable and ultimately reasonable
explanation. One of the primary
purposes of the Labour Relations Act
is to ensure that disputes are resolved expeditiously, especially
dismissal disputes. The
intention is that disputes alleging unfair
dismissal should be referred to conciliation within 30 days of the
dismissal (section
191(1)(b)(i) (Act 66 of 1995)); that the
conciliation process be completed within 30 days (section 191(5)
(Act 66 of 1995)) and
that disputes for adjudication by the Labour
Court should then be referred within 90 days of the end of the
conciliation process.
For a variety of reasons, these time periods
are often not complied with in practice. Nevertheless, to do justice
to the aims
of the legislation, parties seeking condonation for
non-compliance are obliged to set out full explanations for each and
every
delay throughout the process. An unsatisfactory and
unacceptable explanation for any of the periods of delay will
normally exclude
the grant of condonation, no matter what the
prospects of success on the merits…”