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[2018] ZALCPE 16
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National Union of Metalworkers of South Africa and Others v Transnet SOC Limited (PS30/17) [2018] ZALCPE 16 (6 April 2018)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not reportable
CASE
NO: PS 30/17
In
the matter between:
NATIONAL
UNION OF METALWORKERS
OF
SOUTH AFRICA
First
Applicant
SIPHO
ANTONI
Second
Applicant
KWANELE
ADAMS
Third Applicant
and
TRANSNET
SOC LIMITED
Respondent
Application
heard: 22 March 2018
Judgment
delivered: 6 April 2018
JUDGMENT
VAN
NIEKERK J
[1] This is an application to condone
the late referral of a statement of claim.
[2]
The material facts are not in dispute. The second and third
applicants (the employees) were employed by the respondent as DAV
(driver articulated vehicle) operators. In January 2014, they were
suspended in connection with conduct relating to a dispute regarding
changes to the shift pattern that the respondent had introduced. The
employees were dismissed in August 2014 on charges of participation
in an unprotected strike, alternatively, an unlawful work stoppage,
gross insubordination in the form of a refusal to work a rostered
shift, and countermanding an instruction.
[3]
The applicants disputed the fairness of their dismissals and referred
a dispute to the bargaining council, and then to the CCMA.
The matter
was referred ultimately to arbitration. It is of some
significance that the employees, in their evidence before
the
arbitration hearing, denied that there was any type of industrial
action or work stoppage, denied that they had refused to
comply with
any instruction to return to work and denied having countermanded any
instruction to work. After a review of the evidence,
the arbitrator
found that ‘both applicants are guilty of failing to comply
with a lawful and reasonable instruction and participating
in an
illegal work stoppage’. She also found that the second
applicant had countermanded a lawful and reasonable instruction
which
severely affected workplace stability and his relationship with the
respondent (see paragraphs 77 and 78 of the award).
[4]
For reasons that are not entirely clear to me, the award was reviewed
and set aside in terms of a consent order. The founding
affidavit
suggests that the respondent had accepted the applicant’s
assertion that the CCMA had no jurisdiction to arbitrate
the dispute.
In the answering affidavit, the respondent notes that the applicants
‘
belatedly took the point in their review application …
that the CCMA lacked jurisdiction to arbitrate the matter, since the
reason for their dismissal, in part, related to their participation
in a strike which did not comply with the provisions of the
LRA. This
resulted in the annexed award being set aside by consent between the
parties’
.
[5]
The statement of case was filed on 23 May 2017. In the statement of
case, the applicants aver that the award was set aside on
account
of the CCMA having lacked jurisdiction to arbitrate the dispute,
‘pursuant to the Respondent consenting to
an order in those
terms.’ The statement of case continues:
27.
While some of the charges were not directly couched in terms
participation in unprotected strike action, but rather in terms
of
insubordination, they have the element of unprotected strike action,
or conduct in furtherance thereof, at their core. The Applicants
therefore contend that that the Labour Court has jurisdiction to
adjudicate the dispute about the dismissals of the Second and
Third
Applicants.
[6]
It is trite that condonation is not there merely for the asking, nor
are applications for condonation a mere formality (see
NUMSA v
Hillside Aluminium
[2005] ZALC 25
;
[2005] 6 BLLR 601
(LC);
Derrick Grootboom v
National Prosecuting Authority & another
[2013] ZACC 37]).
A
party seeking condonation must make out a case for the indulgence
sought and bears the onus to satisfy the court that condonation
should be granted.
[7] This court is required to exercise
a discretion, having regard to the extent of the delay, the
explanation proffered for that
delay, the applicant’s prospects
of success, and the relative prejudice to the parties that would be
occasioned by the application
being granted or refused.
[8]
In this court, that formulation, which has its roots in
Melane v
Santam Insurance Co Ltd
1962 (4) SA 531
(A), has 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. In
National Union of Mineworkers v Council
for Mineral Technology
[1999] 3 BLLR 209
(LAC) the LAC said the
following:
…
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.
[9] This principle was recently
reaffirmed in
Collett v Commission for Conciliation, Mediation and
Arbitration
[2014] 6 BLLR 523
(LAC), a unanimous judgement of the
LAC, Musi AJA 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:
‘
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 good prospects of success, no
matter how good the explanation for delay, an application
for
condonation should be refused.’
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.
[10]
The statement of case ought to have been filed within 90 days of 19
September 2014. It was filed on 23 May 2017. The explanation
for the
delay, in essence, is that the entire period from the date on which
the dispute was referred to conciliation to the date
of which the
statement of claim was filed was devoted to the pursuit of the
arbitration proceedings. , followed by the challenge
to the award by
way of the review application. In relation to the prospects of
success, the applicants record that they did not
commit the
misconduct for which they were dismissed, that if they are found to
have done so, the sanction of dismissal is unfair,
that the
respondent implemented discipline in an inconsistent manner, and that
the dismissals were procedurally unfair. In relation
to prejudice,
the applicants contend that the respondent will not be prejudiced as
a result of any delay and that it is as good
a position to state its
case in response to the applicants’ claim as it was at the time
of the arbitration.
[11]
The respondent’s opposition to the application for condonation
is driven primarily by the assertion that the applicants
have had the
benefit of a full hearing, conducted over eight days, and that the
arbitrator reached the considered conclusion that
their case had no
merit whatsoever. Given that the applicants have not made a case to
the effect that the outcome would be any
different in proceedings
conducted by this court, there is no real prospect of a change in the
outcome. The respondent also avers
that it would be costly and
time-consuming to commence a trial de novo, and that one of its key
witnesses is no longer resident
in South Africa.
[12]
It is not disputed that the delay in the present instance is some
three and a half years. This is an inordinate delay, by any
measure.
The explanation for the delay, as I have observed, is that the
parties were engaged in an arbitration hearing in respect
of the same
issues that have now been referred to this court. In regard to the
applicants’ prospects of success, the fact
remains that the
present dispute was heard by a senior commissioner over a lengthy
period, that the commissioner considered all
of the evidence and came
to conclusion that there was no merit in the applicant’s case.
Even if I accept that the CCMA had
no jurisdiction to entertain the
claim,
[1]
the award is relevant to a determination of the dispute. It is
significant that the applicants do not aver that other or additional
evidence will be led that might have the consequence of a different
outcome.
[13]
There are two further considerations that I must necessarily take
into account. The first is the statutory objective of expeditious
dispute resolution. The individual applicants were dismissed in
August 2014, almost four years ago. It is unlikely that a trial
would
commence before the lapse of five years after the dismissal. A delay
of that degree is inconsistent with the objective that
labour
disputes be resolved quickly and efficiently. Secondly, the prejudice
to the respondent should the matter proceed to trial
is significant.
It is not, as the applicants suggest, the respondent’s ability
to file a statement in response that is at
stake or the only
potential cause of prejudice to the respondent. It is not disputed
that one of the respondent’s key witnesses
no longer resides in
South Africa, and that another no longer resides in the Port
Elizabeth area. In my view, the respondent would
be materially
prejudiced by having to proceed to trial in these circumstances.
[10]
For all of the above reasons, condonation for the late referral of
the statement of case stand to be refused.
I make the following order:
1.
The application to condone the late filing
of the applicants’ statement of case is dismissed.
2.
There is no order as to costs.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv. F Le Roux, instructed by Gray Moodliar
Attorneys
For
the respondent: Adv. M Euijen SC, instructed by Goldberg De Villiers.
[1]
It seems to
me that the individual applicants were dismissed for participation
in a work stoppage. That is an act of misconduct,
and any dispute
about the fairness of the dismissal effected in those e
circumstances is justiciable by the CCMA. In other words,
the CCMA
had jurisdiction. It is not immediately apparent that the
‘core’ of the dismissal is an alleged unprotected
strike. The applicants’ own case was that there had been no
strike, let alone a work stoppage. It is not immediately apparent
from the papers that the reason for dismissal was one that had an
unprotected strike as its basis. The commissioner found that
there
was a work stoppage, not a strike. What this necessarily implies is
that this court’s jurisdiction to entertain the
present
dispute must be in some doubt. In the absence of any reasons for a
review and setting aside of the award, I am not in
a position to
make any finding or draw any conclusions for present purposes in
this regard.