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[2019] ZALCJHB 23
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PTAWU obo Zile and Others v Benhaul Transport (Pty) Ltd (JS 77/18) [2019] ZALCJHB 23 (21 February 2019)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JS 77/18
In the matter between:
PTAWU
obo ZILE AND 2 OTHERS
Applicant
And
BENHAUL TRANSPORT
(PTY) LTD
Respondent
Heard: 8 February 2019
Delivered: 21 February
2019
Summary: Condonation
application for the late filing of a statement of case. No proper
explanation for the delay tendered. Application
dismissed.
JUDGMENT
PRINSLOO, J
Background facts
[1]
The Applicant union, PTAWU, is acting on
behalf of Zile and two others (the employees).
[2]
The
employees were employed by the Respondent, who embarked on a
retrenchment process in March 2017. All the Respondent’s
employees were issued with a section 189(3) notice, as provided for
in the Labour Relations Act
[1]
(LRA) and they were informed that their positions may be affected by
a restructuring process and they were invited to consult on
the
prescribed topics.
[3]
The employees were notified on 31 March
2017 that their services would terminate on 30 April 2017 due to
retrenchment. The Applicant
subsequently and on 23 May 2017 referred
an unfair dismissal dispute to the National Bargaining Council for
the Road Freight and
Logistics Industry.
[4]
The dispute was conciliated on 3 July 2017
and as the matter remained unresolved, it was referred to the Labour
Court for adjudication.
[5]
The Applicant filed a statement of case on
5 February 2018.
[6]
The Applicant filed an application for
condonation for the late filing of the statement of case on 8
November 2018 and the condonation
application was enrolled for
hearing on 8 February 2019.
[7]
The application for condonation is opposed.
The test for the grant
of condonation
[8]
The relevant legal principles to be applied
in an application for condonation are well established.
[9]
This
Court has a discretion, which must be exercised judicially on a
consideration of the facts of each case and in essence it is
a matter
of fairness to both sides
[2]
.
[10]
In
Melane
v Sanlam Insurance Co Ltd
[3]
it was held that:
‘…
.
Among the facts usually relevant, are the degree of lateness, the
explanation therefore, 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 will be no point in granting
condonation. What is needed is an objective conspectus of all the
facts.’
[11]
In this Court however, the principles have
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.
[12]
This
Court has conventionally applied the approach that in the absence of
a satisfactory explanation for the delay, the applicant’s
prospects of success are ordinarily irrelevant.
[4]
This principle was confirmed in
National
Education Health and Allied Workers Union on behalf of Mofokeng and
Others v Charlotte
Theron
Children’s Home
[5]
where the Labour Appeal Court (LAC) held that without a reasonable
and acceptable explanation for the delay the prospects of success
are
immaterial.
[13]
In
Collett
v Commission for Conciliation, Mediation and Arbitration
[6]
the
LAC confirmed 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.
[14]
The
onus is on the applicant to satisfy the court that condonation should
be granted. In employment disputes there is an additional
consideration which applies in determining whether the onus has been
discharged, as was held
in
National
Union of Metalworkers of SA on behalf of Thilivali v Fry’s
Metals (A Division of Zimco Group) and Others
[7]
:
‘
There
is, however, an additional consideration which applies in employment
disputes in determining whether an applicant for condonation
has
discharged this onus. This is the fundamental requirement of
expedition. The Constitutional Court has, as a matter of fundamental
principle, confirmed that all employment law disputes must be
expeditiously dealt with and any determination of the issue of good
cause must always be conducted against the back drop of this
fundamental principle in employment law.’
[15]
The
fundamental requirement of expedition is not to be ignored. In
Toyota
SA Motors (Pty) Ltd v CCMA and Others
[8]
the Constitutional Court emphasised that one of the fundamental
purposes of the LRA was to establish a system for the quick
adjudication
of labour disputes. When it assesses the reasonableness
of the delay, the court must not lose sight of this purpose.
[16]
In summary: The Courts have endorsed the
principle that where there is a delay with no reasonable,
satisfactory and acceptable explanation
for the delay, condonation
may be refused without considering prospects of success and to grant
condonation where the delay is
not explained, may not serve the
interests of justice. The expeditious resolution of labour disputes
is a fundamental consideration.
[17]
Condonation for delays in all labour law
litigation is not simply there for the taking. The starting point is
that an applicant
in an application such as the present seeks an
indulgence and bears the onus to show good cause.
[18]
It is in this context that the application
for condonation stands to be determined.
The degree of lateness
[19]
Section 191(11)(a) of the LRA prescribes a
90-day period for referral of a dispute to the Labour Court for
adjudication. The 90-day
period is calculated from the date a
commissioner has certified that the dispute remained unresolved.
[20]
In casu,
the
dispute relating to an unfair dismissal for operational requirements
had to be referred within 90 days from 3 July 2017, thus
it had to be
filed by 1 October 2017. The statement of case was filed with this
Court only on 5 February 2018, clearly outside
the prescribed 90-day
period.
[21]
The dispute relating to unfair dismissal
for operational requirements was referred more than 4 months late.
[22]
The delay is no doubt material. In fact, it
is excessive given the context within which labour litigation takes
place and the system
that is designed to ensure the effective and
expeditious resolution of labour disputes. This is even more so where
the LRA provides
for a period of 90 days to file a statement of case,
which period is in itself generous and lengthy.
[23]
In casu
there
is a further delay that cannot be ignored and that is the fact that
the condonation application was only filed on 8 November
2018, more
than one year after the statement of case was supposed to be filed
and more than 9 months after the statement of case
was indeed filed.
The degree of lateness in filing the application for condonation is
material.
[24]
It is trite that an application for
condonation must be brought as soon as it was discovered to be
necessary to bring such application,
and this fact should have been
clear to the Applicant in February 2018, when the statement of case
was filed.
[25]
The delay in filing the application for
condonation is excessive and not minimal or insignificant.
[26]
The degree of lateness is also material
considering the fact that the dispute arose as far back as April 2017
when the employees
were retrenched and almost two years later, the
matter is not one step closer to trial, let alone ready for trial.
This is significant
as the Applicant seeks an order directing the
Respondent to reinstate the employees retrospectively with full back
pay.
[27]
The degree of lateness should however not
be considered in isolation.
Explanation for the
lateness
[28]
A failure to comply with the generous
period of 90 days, has to be explained and the reasonableness of the
delay should be considered
by having regard to the explanation for
the delay.
[29]
As
the Applicant seeks an indulgence from the court and as it bears the
onus to satisfy the court that condonation should be granted,
it is
incumbent upon the Applicant to provide the court with a full
explanation for every period of the delay. It is not sufficient
simply to list significant events that occurred during the period in
question as that does not assist the court properly to assess
the
reasonableness of the explanation
[9]
.
[30]
The explanation for the delay has to be
compelling, convincing and comprehensive, and should cover every
period of the delay.
[31]
In the founding affidavit before me in
support of the application for condonation, the Applicant provided
the following explanation
for the delay:
31.1 The failure to
comply with the prescribed period was not due to a flagrant disregard
of the time limits, but was due
to circumstances beyond the
employees’ control as they relied on Mr Puncho Ndevu. After one
of the employees, Mr Stephen
Matlala, went to the Labour Court on 5
February 2018 to check if their case was filed, he discovered that no
case was filed and
he was advised to take the necessary forms and to
report the matter to the union. It was only after the employees
consulted with
the present union official that the union became aware
that the matter was not filed.
31.2 On 12 April
2018, the union issued a notice of precautionary suspension to Mr
Ndevu, wherein he was invited to make submissions
as to why he should
not be suspended. It is not evident from the application whether Mr
Ndevu was indeed suspended or not.
31.3 It is alleged
that Mr Ndevu was dismissed from the union on 26 April 2018 for
misconduct in that he accepted a bribe
and acted as a chairperson for
a company in a disciplinary hearing of one of the union’s
members and he dismissed the member.
This conduct of Mr Ndevu caused
a loss of trust, as 25 members resigned from the union as a result of
Mr Ndevu’s conduct.
The annexure to the Applicant’s
founding affidavit however does not support this version as it is
evident from the attached
document that the parties have agreed to
terminate Mr Ndevu’s employment by mutual agreement.
[32]
This is the entire explanation provided by
the Applicant.
[33]
I have already alluded to the fact that the
Applicant should provide a full explanation for every period of the
delay. The longer
the delay, the better the explanation should be.
[34]
The dispute relating to unfair dismissal
for operational requirements had to be referred by 1 October 2017.
There is no explanation
for the period between 1 October 2017 and 5
February 2018 when the statement of case was filed. There is not a
single averment
made to explain why the statement of case was not
filed timeously.
[35]
There is absolutely no explanation for the
late filing of the condonation application and this Court is not told
why it took the
Applicant from February to November 2018 to file a
condonation application.
[36]
The Respondent, in its opposing affidavit,
took issue with the explanation tendered and raised concerns
inter
alia,
that the union dismissed Mr Ndevu
only in April 2018, more than three months after the statement of
case was already filed, and
it is unclear how Mr Ndevu’s
dismissal bears any relation to the late filing of the employees’
statement of case. The
disciplinary action taken against Mr Ndevu as
a result of his conduct, was taken in relation to matters unrelated
to this case
and it could not have had any bearing on the late filing
of the statement of case.
[37]
A further difficulty is that the employees
do not explain what steps they took between October 2017 and February
2018 and why Mr
Matlala only bothered to follow up in February 2018,
after the certificate of outcome was issued already in July 2017. Mr
Matlala
did not depose to a confirmatory affidavit and the
allegations relating to him, constitute nothing but hearsay evidence,
which
this Court cannot attach any weight to.
[38]
It is evident that the explanation tendered
for the period of delay is bereft of any detail and lacks
particularity. Material periods
of the delay remained completely
unexplained and the Applicant has tendered no version as to what
happened during those periods.
[39]
The Applicant has to provide an explanation
for every period of the delay to enable this Court to assess the
reasonableness of the
delay and the explanation for it. The Applicant
failed to do so and the explanation tendered is inadequate and far
from compelling,
convincing or comprehensive.
Prospects of success
[40]
Having found that the delay is inordinate
and the explanation tendered not compelling or adequate, it leaves
the issue of prospects
of success.
[41]
In the authorities
referred to
supra
,
the Courts have endorsed the position that the failure to provide a
reasonable and acceptable explanation for the delay renders
prospects
of success immaterial
.
[42]
In casu,
and in light of the
said authorities and given the fact that the Applicant has not
provided a comprehensive, compelling or convincing
explanation for
the delay, the prospects of success are immaterial, and thus need not
be considered.
Prejudice
[43]
The
Respondent submitted that it would suffer prejudice if condonation is
granted as the Applicant provided no proper explanation
for the late
referral of the statement of case. Furthermore, the Respondent
followed a proper retrenchment process and invited
the union to
participate but the union had no interest and declined to attend the
scheduled meetings and consultations. The Applicant
did not file a
replying affidavit to deny, challenge or rebut this version presented
by the Respondent and applying the
Plascon
Evans
rule
[10]
,
I accept this version. The Respondent submitted that if condonation
is granted, it will be prejudiced as it will have to incur
further
costs to defend a meritless case.
[44]
The Applicant on the other hand submitted
that the employees would be prejudiced should the application for
condonation fail. This
is so because the employees have a good case
on procedural and substantive fairness and will suffer harm if the
doors of justice
are shut on them.
[45]
The refusal to condone the late filing of
the statement of case will have the result that the Applicant will be
denied the opportunity
to pursue this case before Court. However, the
Respondent’s prejudice outweighs the Applicant’s
prejudice, for the
reasons stated
supra.
It is evident that the Applicant has
not pursued this matter diligently, which is supported by the fact
that the condonation application
was only filed more than one year
after the date the statement of case was to be filed, with absolutely
no attempt to explain the
delay. Almost two years after the employees
had left the Respondent’s employ, they are not one step closer
to finality in
this matter.
[46]
I have to endorse the aim of the LRA namely
to resolve labour disputes speedily and without delay. Granting
condonation in a case
like this would not be in the interest of
justice as it would undermine the statutory purpose of expeditious
dispute resolution,
another factor that weighs heavily in the
Respondent’s favour.
[47]
On an objective conspectus of all the
facts, the Applicant’s application for condonation falls
hopelessly short off the mark.
The Applicant did not discharge the
onus to show good cause and to provide an acceptable and plausible
explanation for the delay.
For the above reasons, it will not be in
the interests of justice that the application for condonation be
granted.
[48]
In so far as costs are concerned, this
Court has a broad discretion in terms of section 162 of the LRA to
make orders for costs
according to the requirements of the law and
fairness. In my view the interest of justice will be best served by
making no order
as to costs.
[49]
In the premises I make the following order:
Order
1.
The application for condonation for the
late filing of the Applicant’s statement of case is dismissed;
2.
There is order as to costs.
__________________
Connie Prinsloo
Judge of the Labour Court
of South Africa
Appearances:
For the Applicant:
Mr Amos Mogano
of PTAWU
For the Respondent:
Mr L Hatting of Wentzel & Partners
Attorneys
[1]
Act
66 of 1995, as amended.
[2]
‘
Civil
Procedure in the Superior Court, Harms at B27.6.
[3]
1962
(4) SA 531
(A) at 532 C - F.
[4]
See
NUM
v Council for Mineral Technology
[1999]
3 BLLR 209 (LAC).
[5]
(2004)
25
ILJ
2195 (LAC)
at
para
23
.
[6]
(2014)
6 BLLR 523
(LAC).
[7]
(2015)
36
ILJ
232 (LC)
.
[8]
(2016)
37 ILJ 313 (CC).
[9]
See:
IMATU
obo Zungu v SALGBC and Others
(2010) 31 ILJ 1413 (LC).
[10]
In
Plascon-Evans
Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd
.
[1984] ZASCA 51; [1984] 2 All SA 366 (A); 1984 (3) SA 623; 1984 (3)
SA 620, the Court held that w
hen
factual disputes arise, therefore, relief should be granted only if
the facts stated by the respondent, together with the
admitted facts
in the applicant's affidavits, justify the order
.