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[2019] ZALCJHB 136
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NEHAWU obo Matiyane v Shear NO and Others (JR1376/15) [2019] ZALCJHB 136 (15 February 2019)
the
labour court of South Africa, johannesburg
judgment
Not
reportable
CASE NO: JR 1376/15
In the matter between
NEHAWU
obo YN MATIYANE
Applicant
and
LARRY
SHEAR
N.O
First
Respondent
CCMA
Second
Respondent
LGSETA
Third Respondent
Heard:
14 February 2019
Judgment
delivered: 15 February 2019
JUDGMENT
VAN NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the
first respondent on February 2015. In his award, the
first respondent (the arbitrator) upheld the applicant’s
dismissal by
the third respondent. The review application was filed
outside of the applicable statutory time limit, and the applicant
seeks
condonation for the late filing.
[2]
The application for review was filed on 27 July 2015. In terms of s
145 of the LRA,
the application was to have been filed within six
weeks of the date of receipt of the award. The deponent to the
founding affidavit
in the review application, a union official,
states that he received the award on 24 February 2015. The
application ought therefore
to have been filed by 7 April 2015. The
period of delay is thus just short of four months.
[3]
The court has a discretion, to be exercised judicially, to grant
condonation. Among the
factors usually relevant for
consideration are the degree of lateness, the explanation therefor,
the prospects of success, the
prejudice that parties will suffer if
condonation is granted or refused, and the importance of the case.
None of these factors
are individually decisive and the court must
consider all the facts. In the final analysis, it is a matter
of fairness to
the parties. Condonation applications require a court
to balance various interests and factors, having regard to all of
them with
none of them being decisive. (See
Melane v Santam
Insurance Co. Ltd
1962 (4) SA 531
(A) at page 532;
NEHAWU obo
Mafokeng and Others v Charlotte Theron Children’s Home
[2004] 10 BLLR 979 (LAC).
[4]
In
Foster v Stewart Scott Inc.
(1997) 18
ILJ
367(LAC),the Labour Appeal Court noted the following as factors
which have to be considered or taken into account in a condonation
application:
the degree of lateness or
non-compliance with the rules;
the explanation therefor;
the prospects of success;
the importance of the
case;
the respondent's interest
in the finality of the judgment;
the convenience of the
court; and
the avoidance of
unnecessary delays in the administration of justice
[5]
The principles were also summarised in
South
Africa Post Office Ltd v CCMA & Others
[2012] JOL 28463
(LAC). In this case, the court recognised that
ultimately the test is whether it is in the interests of justice to
grant condonation.
The court accepted that in matters where
importance is placed upon the speedy and expeditious resolution of a
dispute, even a short
delay may not be excusable, unless an
explanation is proffered that sets out the reasons for the delay
which the Court should find
acceptable. The court further held
that:
Where it is evident that
the party seeking condonation has no prospects of succeeding in his
principal claim or opposition, no purpose
is served in granting
condonation and the Court must in such circumstances refuse to grant
condonation irrespective of the degree
of delay or the explanation
provided.
[6]
In
National Union of Mineworkers v Council for Mineral Technology
[1998] (2) ZALAC 22
, the LAC established the principle that given the
extent of the delay and the poor explanation for the delay, it was
not necessary
to consider the applicant’s prospects of success
in the main application. This was affirmed more recently in
Collett
v Commission for Conciliation, Mediation & Arbitration
[2014]
6 BLLR 523
(LAC) where the court stated 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 532 C-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 the 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.”
[7]
In the case of reviews, this matrix has been the subject of some
modification, which
requires the court to adopt a strict approach.
These modifications were summarised by Myburgh AJ in
Makuse v
Commission for Conciliation Mediation & Arbitration and others
(2016) 37
ILJ
163 (LC), where the court emphasised the
statutory purpose of expeditious dispute resolution and the ‘strict
scrutiny’
to which applications for condonation in review
applications especially in the context of individual dismissals,
ought to be subjected.
Myburgh AJ concluded:
The corrective steps
taken by the Labour Courts as an institution and the legislature to
ensure the expeditious prosecution and
determination of review
applications outlined above underscore the statutory imperative that
labour disputes must be effectively
(and thus expeditiously)
resolved. And the strict scrutiny of combination applications
relating to the late launching of
s 145 review applications is
very much part of this overall scheme of things.
[8]
In the founding affidavit in the review application, the applicant
seeks condonation despite
having been advised that ‘no need
exists for a condonation application.’ This advice appears to
have been predicated
on the view that the application had been
brought within a reasonable time, and that the application had been
‘actively pursued’.
This view is clearly misguided. The
review application had been filed late, condonation was required, and
the facts do not disclose
any degree of active pursuit of the matter.
Indeed, a separate, substantive application for condonation was filed
on 18 July 2017,
almost exactly two years after filing the review
application. In that application, the applicant makes out a case for
condonation
‘albeit that the application for review contains a
short application for condonation…’ The founding
affidavit
is deposed to by Stuart Marshall, the union’s
national coordinator: legal. The deponent does not explain why a
further condonation
application was filed two years after the filing
of the review. Much of the explanation for the delay concerns events
that occurred
after the filing of the review application, and has
little bearing on the failure to file the review application within
the prescribed
time. The deponent avers that the review ‘was
indeed drafted and launched within the 180 days as referred to
above’.
Section 145 requires that a review application be filed
within six weeks, and not six months, of service of the award. The
affidavits
filed in support of the application make clear that the
union became aware of the award on 24 February 2015. To the extent
that
the deponent of the affidavit filed in support of the later
application suggests that the award was only ‘brought to the
attention of the union and dealt with during the first part of April
2015’, this is patently in conflict with the version
that the
award was received in February. The reasons for delay that relate to
the fact of the applicant’s residence in North
West and her
inability to travel , and her status as a lay person ignorant of the
law, are specious, to say the least. The applicant
at all times was
assisted by the union. The union represented her at the arbitration
hearing and represents her in these proceedings,
to the extent that
the founding papers are deposed to by union officials. The union’s
legal officials who dealt with the
matter must have known that they
had six weeks after receipt of the award to file any review, and they
were no doubt able to draft
what is a straightforward application. In
any event, the account of delay fails to explain why it took almost
four months from
early April to the end of July to file the
application. The explanation for an ordinate delay in filing the
review application
is wholly unsatisfactory. What the affidavits
disclose is that the union officials concerned were either unaware of
the statutory
time limit applicable to review applications and that
they were content to wallow in their ignorance, or that their
affidavits
are deliberately misleading.
[9]
In regard to the prospects of success, these are not dealt with, as
they are required
to be, in the founding affidavits filed in support
of the applications for condonation. Instead, the court is left to
determine
any prospects of success by way of reference to the review
application. This is unacceptable.
[10]
In short: the delay in filing the review application is inordinate,
and the explanation for it
patently unsatisfactory.
[11]
Strictly, in terms of the applicable authorities, the applicant’s
prospects of success
are irrelevant in these circumstances, and the
application stands to be dismissed. Even if I were to have regard to
of the applicant’s
submissions in support of her contention
that her prospects of success are good, the starting point in any
application to condone
the late filing of a review is the test to be
applied. This court is empowered to intervene by way of review if and
only if the
arbitrator commits a reviewable irregularity that has the
consequence of a reasonable result. It is not enough that the
arbitrator
came to a conclusion that the applicant contends is
incorrect.
[12]
The ground for review canvassed most vigourously during argument was
that there was no workplace
rule that the applicant had infringed,
and that her dismissal was substantively unfair on that account. The
arbitrator canvasses
this issue in his award. He noted that the
applicant had been charged with non-compliance with various
regulations, a failure to
maintain a database of suppliers, and the
procuring of services from suppliers not recorded in the data base.
The arbitrator
noted that the applicant had elected not to testify at
the arbitration hearing, but that she had not disputed the charges
and submitted
that she had not received adequate training, and that
there were no policies in place. On the evidence before him, the
arbitrator
found that the requirements were inherent for the work to
be done by a head of supply chain management in government. The
requirements
had been canvassed in the evidence given by a Mr
Senwamadi, who specifically stated that the he was satisfied that the
applicant
knew what was required and what was to be done. I fail to
appreciate how it can be said that on this undisputed version the
arbitrator
came to a conclusion that was so unreasonable that no
reasonable person could come to it, when he decided that there were
requirements
applicable to the applicant’s work and that she
ought to have taken steps to become proficient and efficient in the
performance
of her functions had she felt that there were gaps in her
knowledge. In short, while it is strictly not a relevant
consideration
in the exercise of the discretion in relation to
condonation, the applicant’s prospects of success (such as they
are) are
not so overwhelming that they outweigh the significant
period of delay and the poor explanation proffered for it.
[13]
In so far as costs are concerned, the provisions of s 162 afford this
court a broad discretion
to make orders for costs according to the
requirements of the law and fairness. The applicant has been
represented throughout by
a trade union, assisted by legally trained
union officials. Union officials have right of appearance in this
court, and they are
thus expected to be familiar with the substantive
principles of law and this court’s procedures. The applications
for condonation
display a wholly inadequate understanding of both.
In terms of s 162 ((3), the court is empowered to make an order for
costs
against any representative of any party. In my view, there is
no reason why the union ought not to pay the costs of these
proceedings.
I make the following
order:
1.
Condonation for the late filing of the
review application is refused.
2.
The review application is dismissed with
costs, such costs to be paid by the National Education Health and
Allied Workers Union.
André van Niekerk
Judge