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[2019] ZALCJHB 59
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SATAWU obo Hlalethwa v Transnet Bargaining Council and Others (JR2215/16) [2019] ZALCJHB 59 (26 March 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR2215/16
In
the matter between:
SATAWU
OBO M.R. HLALETHWA
Applicant
and
TRANSNET
BARGAINING COUNCIL
First Respondent
ARBITRATOR
EBRAHIM PATELIA
N.O.
Second Respondent
TRANSNET
FREIGHT RAIL
Third Respondent
Heard:
Delivered:
19
JULY 2018
26
MARCH 2019
JUDGMENT
PIENAAR,
AJ
Introduction
[1]
This
is an opposed Application for review in terms of section 145 and
section 158 of the Labour Relations Act
[1]
(LRA) brought by SATAWU on behalf of one of its members Ms Hlalethwa.
[2]
The Applicant wishes to review and set aside
the ruling granted by the Second Respondent on 09 September 2016
whereby the Second
Respondent dismissed the Applicant's Condonation
Application for the late filing of the Rescission Application and, in
turn, dismissed
the Applicant's Rescission Application.
Background
[3]
The Applicant commenced employment as a Manager
with the Third Respondent on 01 June 2011. It was alleged that the
Applicant was
fraudulently submitting travel claims on trips not
taken. Consequently, the Applicant was charged with fraud and
dishonesty and
was requested to attend a pre-dismissal arbitration.
[4]
There were 10 attempts to hold the
pre-dismissal arbitration over the course of almost a year. Of the 10
postponements, the Applicant
was the cause of 6 postponements and, in
particular, the cause of the final 4 consecutive postponements.
Accordingly, the Applicant
was notified by a registered letter, that
the arbitration would proceed in her absence if she failed to attend
the next date that
the arbitration was set down for which was 11
March 2015.
[5]
Consequently, when the Applicant did not appear
at the proceedings on 11 March 2015 because of an alleged illness,
the Arbitrator
proceeded with the pre-dismissal Arbitration in the
Applicant's absence.
[6]
The Arbitrator found the Applicant guilty of
fraud and dishonesty and ruled that dismissal was an appropriate
order. Consequently,
the Arbitrator dismissed the Applicant whom was
handed a letter of dismissal on 11 April 2015.
[7]
According to the Applicant, she contacted
SATAWU and notified them of the default award against her. On or
around 26 June 2015,
an intern at SATAWU erroneously referred a
Review Application to the Labour Court instead of applying for the
rescission of the
default award.
[8]
This mistake only came to the attention of
SATAWU almost a year later who then launched the Rescission
Application and Condonation
Application with the First Respondent. At
this point the Applicant was approximately 15 months late in filing
her Application for
Rescission.
[9]
On 09 September 2016, the Second Respondent
dismissed both the Condonation Application and, by implication, the
Rescission Application.
This is the subject of the review.
[10]
The Applicant's main grounds of review put
forward were that the Second Respondent committed a gross
irregularity, the Second Respondent
arrived at a ruling that no
reasonable Arbitrator would have arrived at, the Second Respondent
failed to consider all the material
facts presented to him by the
parties and the Second Respondent's ruling is flawed in relation to
both process and outcome.
Analysis
and findings
[11]
It
is trite that the onus sits on the Applicant to prove that the
Condonation Application must be granted. In the case of
NUMSA
and Another v Aluminium Hillside
[2]
,
the
court stated:
[12]
It
is trite that the onus sits on the Applicant to prove that the
Condonation Application must be granted. In the case of
NUMSA
and Another v Aluminium Hillside
[3]
,
the
court stated:
'Condonation
is not there merely for the asking. Applications for condonation are
not a mere formality. The onus rest on the applicant
to satisfy the
court of the existence of good cause and this requires a full,
acceptable and ultimately reasonable explanation.'
[4]
[13]
The
court in
Melane
v Santam Insurance Co Ltd
[5]
,
set
out the following factors that must be taken into account when
deciding whether condonation should be granted:
12.1
extent of the delay in filing the rescission application;
12.2
the explanation for the delay in filing the rescission application;
12.3
the prospects of success of the rescission application;
12.4
the importance of the issue.
[14]
In addition the court considers the potential
prejudice to be suffered by the parties if condonation is or is not
granted.
Extent
of the delay.
[15]
As stated in Rule 31 of the Bargaining Council
rules, an application for the rescission of an arbitration award or
ruling must be
made within fourteen (14) days of the date on which
the applicant became aware of the arbitration award or ruling which
was erroneously
made in the absence of any party affected by the
award or ruling.
[16]
It appears to be common cause that the
Applicant became aware of the default award when she was handed the
dismissal letter by the
Third Respondent on 11 April 2015.
[17]
This would mean that the Applicant had to apply
for rescission of the award by 25 April 2015. The Applicant only
referred the matter
to Transnet Bargaining Council for rescission on
28 July 2016. Accordingly, the rescission application was
approximately 15 months
late. It cannot be debatable that the delay
is indeed excessive in the extreme.
[18]
The Second Respondent incorrectly stated that
the Applicant became aware of the award when it was issued on 24
March 2014. Accordingly,
the Second Respondent identified the due
date for the Rescission Application to be on 07 April 2015. However,
the incorrect dates
has no baring on this case as the delay in the
Application for Review, regardless of whether it was due on 07 April
2015 or 25
April 2015, is excessive.
Explanation
for the delay
[19]
The Applicant argued that the reason for the
late referral of the rescission judgment was due her legal
representative and the negligent
and substandard performance of
SATAWU in that they erroneously launched a review application instead
of a rescission application.
Accordingly, the Applicant argued that
her representative misunderstood the correct procedure and legal
principles that should
be applied.
[20]
In
Honey
and Blankenberg v Law
,
[6]
the Court held as follows with regard to negligence on the part of an
attorney:
‘
The
test for establishing negligence [on the part of the attorney in
performing his or her duties] is whether he [such attorney]
has been
proved to be guilty of such failure as no attorney of ordinary skill
would be guilty of if acting with reasonable care.
He will not be
guilty of negligence merely because he committed an error of
judgement whether on matters of discretion or law.’
[7]
[21]
This
finding was referred to with approval by the Appellate Division in
Mouton
v Die Mynwerkersunie
.
[8]
[22]
The
Appellate Division in
Saloojee
and Another, NNO v Minister of Community Development
[9]
(“
Saloojee
”),
held that it cannot be assumed that non-compliance with Rules of
Court, which is entirely attributable to the attorney
of the
non-complying party, should automatically result in an Application
for condonation being granted.
[10]
[23]
The
courts have held that the same principle would apply in situations
where a Union has been the cause of the delay to the proceedings.
In
the case of
AMCU
and Others v Oil Separation Services Northern Province
[11]
,
the
court held:
‘
The
starting point is that to the extent that a Union and its officials
are mandated to act on behalf of its members, especially
in regards
to all matters pertaining to employees' rights in the LRA, there is
in my view, no reason to distinguish them from the
ordinary
attorney/client relationship. It is trite that litigants cannot be
absolved from tardiness of their own chosen representatives.'
[12]
[24]
In light of the above principles, it is not
sufficient for the Applicants simply to lay the blame for the delay
in filing their
rescission application on the SATAWU. The fact that
the Applicant's Union took the matter on review is regrettable but
the Applicant
ultimately bears the consequence of the Union's
actions.
[25]
Furthermore, it was correctly pointed out by
the Third Respondent that in light of the extent of the delay, the
explanation proffered
by the Applicant was equally inadequate and not
reasonable. The Applicant took 9 months to enquire about the progress
of her case
with SATAWU. This falls short of what a reasonable
litigant would have done.
Prospects
of success: rescission application
[26]
In
the case of
National
Union of Mineworkers v Council for Mineral Technology
[13]
,
the court stated that:
'…without
a reasonable and acceptable explanation for the delay, the prospects
of success are immaterial…'
[14]
[27]
In this case, in light of the conclusions
reached, the Applicants’ attempt to lay blame squarely on
SATAWU cannot be accepted
as an excuse, and further in the delay
being excessive in the extreme, it follows that the explanation, if
any, does not amount
to an explanation at all. Thus, little purpose
would be served by considering the Applicants’ prospects of
success in the
matter.
[28]
However, for the sake of completeness, the
basis of the Applicant's claim will be briefly discussed. The
Applicant submitted
that she was never afforded an opportunity to
make representations, thus contravening the requirements of natural
justice based
on fairness and the right to be heard. She stated that
she has more evidence to prove that she can defend herself
successfully
on all allegations against her.
[29]
However, in no way does she substantiate this
claim by providing any proof of her innocence. Thus, the Applicant
wishes this Court
to take a blind leap of faith and mindlessly
believe that she possesses evidence which will exonerate her from the
offence.
[30]
In contrast, the Third Respondent presented a
host of evidence in the form of phone records and map analysis that
implicated the
Applicant in the impugned offence. Furthermore, the
Third Respondent exhibited proof that 6 other Managers in its employ
were charged
with similar offences and were subsequently dismissed.
[31]
I agree with the Second Respondent in finding
that, from the information available, the Third Respondent's version
is more probable
that that of the Applicant. In the absence of any
evidence to the contrary I therefore find that the Applicant has
little to no
prospects of success in the rescission application.
Prejudice
[32]
It is my view that the granting of the
condonation application would cause undue prejudice to the Third
Respondent.
[33]
Given the already lengthy delay, the Third
Respondent has lost key resources, such as crucial witnesses, that
are integral in successfully
prosecuting this offence. Thus, there
would be an undue burden on the Third Respondent to condone this
application.
[34]
Furthermore, it appears apparent to me that the
Applicant was the architect of her own misfortune.
Conclusion
[35]
I am of the view that the Second Respondent in
his ruling correctly dismissed the Condonation Application for the
late filing of
the Rescission Application.
[36]
Therefore, I concur with the decision of the
Second Respondent and can find no reason to interfere with his
ruling.
[37]
For these reasons, I order as follows:
Order
1.
The
review application is dismissed with costs.
_____________
Pienaar,
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Dawn
Malope of
Masondo Malope Attorneys
For
the Third Respondent: Zanele Chauke of Poswa Inc
[1]
66 of 1995, as amended.
[2]
[2005] 6 BLLR 601 (LC).
[3]
[2005] 6 BLLR 601 (LC).
[4]
Id
fn 2 at para 12.
[5]
1962 (4) SA 531
(A) at 532C-D.
[6]
1966 (2) SA 43 (R).
[7]
Ibid at 46H-47A.
[8]
1977 (1) SA 119
(A) at 142H-143A.
[9]
1965 (2) SA 135 (A)
[10]
Ibid at 141B-H.
[11]
Unreported case. (JS815/16) [2017] ZALCJHB 3 (11 January 2017)
[12]
Ibid at para 10 and 11.
[13]
1999(3)
BLLR 209 (LAC),
[14]
Id
fn 13 at para 10. Quoted with approval in
Mofokeng
and 4 Others v Rotek and Roschon Soc Ltd
(JR264/16) [2018] ZALCJHB 421 (13 December 2018).