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[2018] ZALCPE 1
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Slabbert v Motor Industry Bargaining Council and Others (PR11/17) [2018] ZALCPE 1 (16 January 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT PORT ELIZABETH
NOT
REPORTABLE
Case
Number PR 11/17
In
the matter between:
ADRIANA
CHRISTA SLABBERT
Applicant
and
MOTOR
INDUSTRY BARGAINING COUNCIL
First Respondent
COMMISSIONER
BOTHA DU PLESSIS
Second Respondent
BMW
CONTINENTAL CARS
Third Respondent
Heard:
16 January 2018
Delivered:
16 January 2018
EX TEMPORE
JUDGMENT
POTGIETER,
AJ
[1]
This
is an application firstly to condone the late filing of a review
application and if condonation is granted, to review and set
aside
the decision of the Second Respondent (hereinafter referred to as
“the Arbitrator”) acting under the auspices
of the First
Respondent.
[2]
The Arbitrator held that the dismissal was fair.
CONDONATION.
[3]
Section
145(1A) of the Labour Relations Act, No 66 of 1995 (LRA) requires of
the applicant to show good cause when applying for
condonation.
[4]
In considering whether good cause had been shown I am having regard
to what was said in
Hospersa
& Others vs. PSCBC & Others (under case number C 502-2011)
(handed
down on 22 November 2013) where the Honourable Judge extensively
dealt with the applicable jurisprudence. The overriding
principle guiding me in exercising my discretion whether to grant or
refuse an applicant’s application for condonation, as
confirmed
by the Constitutional Court in
Brummer
v Gorfil Brothers Investments (Pty) Ltd
[2000] ZACC 3
;
[2000] (2) SA 837
(CC)
,
is
the interest of justice.
[5]
Factors
to be considered are the length of the delay, explanation thereof,
prospects of success, prejudice and public interest.
[6]
The application is late by 77 days. The delay is serious and needs a
full and proper explanation – see
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae)
2008 (2) SA 4
72 (CC)
at
paragraph [22] “
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.”
[7]
The explanation proffered by the applicant is highly improbable as
she states on the one hand that she first became aware of
the six
week period when she spoke to Mrs van Staden and on the other hand
that she, when she spoke to Mrs van Staden, was under
the impression
that she already lost the case because of the six week period. This
evidence is not congruent with her evidence
that Mr. van der Walt
never told her about the time limits she would only think that she
already lost her case if she was advised
by Mr. van der Walt of the
six week period. A highly improbable version is presented in that she
received hand delivered correspondence
from Mr. van der Walt but did
not read it because she did not trust him. No apparent reason is
advanced for her misgivings of his
trustworthiness is given. I also
find it strange that a person, aggrieved by being unfairly dismissed,
takes her time, where she
knows that time is of the essence to read
through the very papers she will rely on to enforce her rights
causing a further delay.
[8]
Large portions of the 77 days remains unexplained and the explanation
of some of the time amounts to no explanation at all.
I cannot under
these circumstances find that it will be in the interest of justice
to grant condonation. The applicant states that
she enjoys prospects
of success. I do not necessarily share her view. I have already
stated that her explanation for her lateness
amounts to no
explanation at all. It will thus not be necessary to deal with
whether she does or does not have prospects of success
as confirmed
by the Labour Appeal Court
[1]
[9]
The applicant had not shown good cause. It is, as stated above, not
in the interest of justice to grant condonation under the
circumstances presented to me.
[10]
There is nothing before to prevent me from ordering that costs should
follow the outcome.
ORDER
Condonation
is not granted and the applicant’s application is dismissed
with costs.
-----------------------------------
POTGIETER,
A J
Appearances
For
the Applicant: Mr. R o’ Brien
of
O’Brien Incorporated
For
the Respondent: Advocate J.G. Grogan
Instructed
by Joubert Galpin & Searle
[1]
NUM
v Council for Mineral Technology (2002)
23
ILJ 1229 (LC)
at
1231 D – E: “
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 prospects of success, no
matter how good the explanation for the delay, an application
for
condonation should be refused.”