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[2019] ZALCJHB 208
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Lempe and Others v Distell Limited (J235/2014) [2019] ZALCJHB 208 (30 April 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: J 235/2014
THABISO
LEMPE AND 79 OTHERS
Applicant
and
DISTELL
LIMITED
Respondent
Decided:
In
Chambers
Delivered:
30 April 2019
JUDGMENT APPPLICATION
FOR LEAVE TO APPEAL
PRINSLOO J.
Introduction
[1]
On 22 December 2017, this Court handed down
judgment in terms of which the Applicant’s case was dismissed
with costs.
[2]
On 8 April 2019, almost one year, two
months and 16 days after the judgment was handed down, the Applicant
filed an application
for leave to appeal against the whole of the
judgment and orders of this Court. The Applicant also filed an
application for condonation
for the late filing of the application
for leave to appeal. Both applications are opposed by the respondent.
[3]
I will first deal with the issue of
condonation.
Condonation
The
test for the grant of condonation
[4]
The relevant legal principles to be applied
in an application for condonation are well established.
[5]
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
[1]
. In
Melane
v Sanlam Insurance Co Ltd
[2]
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.’
[6]
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.
[7]
This
Court has conventionally applied the approach that in the absence of
a satisfactory explanation for a delay, the applicant’s
prospects of success are ordinarily irrelevant.
[3]
This principle was confirmed in
National
Education Health and Allied Workers Union on behalf of Mofokeng and
others v Charlotte
Theron
Children’s Home
[4]
where the Labour Appeal Court (LAC) held that without a reasonable
and acceptable explanation for a delay the prospects of success
are
immaterial.
[8]
In
Collett
v Commission for Conciliation, Mediation and Arbitration
[5]
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.
[9]
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
[6]
:
‘
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.’
[10]
The
fundamental requirement of expedition is not to be ignored. In
Toyota
SA Motors (Pty) Ltd v CCMA and Others
[7]
the Constitutional Court emphasised that one of the fundamental
purposes of the Labour Relations Act
[8]
(LRA)
was to establish a system for the quick adjudication of labour
disputes. When it assesses the reasonableness of a delay, the
court
must not lose sight of this purpose.
[11]
In summary; The Courts have endorsed the
principle that where there is a delay with no reasonable,
satisfactory and acceptable explanation,
condonation may be refused
without considering the 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.
[12]
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 from the court and bears the onus to show good cause.
[13]
It is in this context that the application
for condonation stands to be determined.
The degree of lateness
[14]
Rule 30(2) of the Rules of the Labour Court
provides that an application for leave to appeal is to be made within
15 days of the
date of the judgment against which leave to appeal is
sought. The judgment was handed down on 22 December 2017, and the
15-day
period prescribed in the Rules, expired on 17 January 2018.
[15]
In the application for condonation, the
Applicant conceded that the delay is excessive. Indeed, the delay is
inordinate and excessive.
[16]
The degree of lateness should however not
be considered in isolation.
Explanation
for the delay
[17]
Failure to comply with the prescribed time
periods has to be explained and the reasonableness of the delay
should be considered
by having regard to the explanation for the
delay.
[18]
As
the Applicant seeks an indulgence from the Court, they bear the onus
to satisfy the Court that condonation should be granted.
The
Applicant has 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 to properly assess the reasonableness
of the
explanation
[9]
.
[19]
The explanation for the delay has to be
compelling, convincing, comprehensive, and should cover every period
of the delay.
[20]
In the founding affidavit before me in
support of the application for condonation, the Applicants provided
the following explanation
for the delay:
20.1
After they had learned about the outcome of the case, a general
meeting was held on 28 January 2018 where a decision
was taken to
challenge the outcome of the case. On 27 February 2018 a meeting was
held with the Applicants’ former attorney
and at the
consultation, the said attorney was asked to assist the Applicants in
challenging the outcome of their case. The attorney
undertook to look
into the matter and a few days after the consultation, the Applicants
received a letter from the attorney indicating
that a deposit of R
50 000 was required to take the matter forward. After engagement
with the attorney, the amount required
was reduced to R 30 000.
20.2
By 20 May 2018 the Applicants had raised R 13 450 and approached
their attorneys. At that point the attorneys advised
the Applicants
that they could no longer assist them with their matter.
20.3
On 25 May 2018, the Applicants went to the Labour Court for
assistance and they were assisted by the
pro
bono
office. They met with an attorney
at the
pro bono
office
who told them that they did not have any prospects of success and
that they were way out of time.
[21]
It is evident that on the Applicants’
own version, they were told as early as May 2018 that they were
already ‘way out
of time’.
[22]
In June 2018, the Applicants approached a
law firm in Randburg. A consultation was scheduled and they informed
the attorneys of
the amount raised, but were told that it was not
sufficient for the deposit that was required.
[23]
It is not evident from the Applicants’
explanation what happened after the consultation in June 2018 as
there is no explanation
tendered for the entire period between July,
August and September 2018.
[24]
On 2 October 2018, the Applicants
approached the EFF for assistance and they were told that the EFF
does not assist in labour matters.
It is not explained why the
Applicant approached a political party for assistance in a labour
matter.
[25]
The Applicants stated that they continued
with their endeavours to find assistance. This Court is not told what
those ‘endeavours’
were and what happened during the
period 2 October 2018 and March 2019, when they approached their
current attorneys for assistance
in April 2019. A period of six
months remained completely unexplained and all that is tendered to
this Court, is an unsubstantiated
statement that endeavours were
continued with.
[26]
A consultation was set up with the current
attorney for 4 April 2019, when the Applicants handed their files to
one Ms Ntuli, who
advised them that the prospects of the matter would
be considered and a decision would be taken on whether or not to
assist the
Applicants on a
pro bono
basis. On 5 April 2019, Ms Ntuli
informed the Applicants that the matter would be dealt with on a
pro
bono
basis and they consulted their
current attorneys on 7 April 2019. The application was filed on 8
April 2019.
[27]
The Applicants explained that they did not
know that they could have sought assistance from Legal Aid, the Wits
Law Clinic and the
like. They did not have money to prosecute the
appeal and did not know about the organisations that could assist
them for free.
It is significant that the deponent to the affidavit
however conceded that he was aware of Legal Aid, but he was under the
impression
that Legal Aid only assisted in criminal cases. He did
nothing to confirm his impression and if he had made any effort to
contact
Legal Aid, he would have been informed that his impression
was wrong.
[28]
It is however evident that the Applicants
approached the
pro bono
clinic
at the Labour Court as far back as May 2018 and the reason why the
pro bono
clinic
was not prepared to assist them, was because they had no prospects of
success.
[29]
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 more comprehensive the explanation
should be.
[30]
The application for leave to appeal is more
than one year late and in the founding affidavit there is no
explanation for the period
between July and October 2018 and from 2
October 2018 to April 2019 when the Applicants consulted their
current attorneys of record.
There is not a single averment made to
explain the delay for a total period of nine months.
[31]
A further difficulty is that the Applicants
do not explain what steps were taken during the aforesaid period and
the Applicants
did no more than to list certain events during a
period of more than 14 months.
[32]
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.
[33]
The Applicant has to provide an explanation
for every period of delay in order to enable this Court to assess the
reasonableness
of the delay and the explanation for it. The
Applicants failed to do so and the explanation tendered is inadequate
and far
from compelling, convincing or comprehensive.
Prospects
of success
[34]
Having found that the delay is inordinate
and the explanation tendered not compelling or adequate, I now turn
to deal with the issue
of prospects of success.
[35]
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
.
[36]
In casu,
and in light of the
aforesaid authorities and given 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
[37]
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.
[38]
In respect of prejudice, the Applicants
submitted that they would be severely prejudiced if the application
is not granted as they
would be barred from pursuing their appeal.
The Applicant’s case is that the prejudice they stand to suffer
outweighs any
possible prejudice the Respondent may suffer. They,
however did not explain why this would be the case.
[39]
On the other hand, the Respondent submitted
in opposition that even though the Applicants decided in January 2018
to challenge the
judgment on appeal, at no point did the Applicants
or their legal representatives indicate such an intention to the
Respondent.
The Respondent accepted that the matter had been
finalised and did not expect to receive an application for leave to
appeal more
than one year after judgment in the matter had been
handed down. The delay in filing the application for leave to appeal
is of
significant prejudice to the Respondent. The Applicants were
dismissed as far back as December 2013 and this application serves
before this Court in 2019, almost a period of six years has lapsed.
Therefore, to prolong the litigation, while there is no justifiable
reason to do so, flies in the face of the object of expeditious
resolution of labour disputes.
[40]
While
the refusal to condone the late filing of the application for leave
to appeal will have the result that the Applicants will
be denied the
opportunity to pursue an appeal, the Constitutional Court pointed out
in
Toyota
SA Motors (Pty) Ltd
[10]
that excessive delays in litigation may induce a reasonable belief on
the part of a successful litigant that the order or award
had become
unassailable. As the Constitutional Court observed, this principle
applies with even greater force in labour disputes.
[41]
In casu,
the
Respondent is entitled to finality and it was reasonable for the
Respondent to accept, after more than one year after the judgment
was
handed down, that the order had become unassailable.
[42]
I further 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
interests of justice as it would undermine the statutory purpose of
expeditious dispute
resolution, another factor that weighs heavily in
the Respondent’s favour.
[43]
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.
[44]
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 interests of justice will be best served by
making no order
as to costs.
[45]
In the premises, I make the following
order:
Order
1.
The
application for condonation for the late filing of the Applicant’s
application for leave to appeal is dismissed;
2.
There
is no order as to costs.
_____________________
Connie Prinsloo
Judge
of the Labour Court of South Africa
[1]
Civil
Procedure in the Superior Court, Harms at B27.6.
[2]
1962
(4) SA 531
(A) at 532 C - F.
[3]
See:
NUM
v Council for Mineral Technology
[1999]
3 BLLR 209 (LAC).
[4]
(2004)
25
ILJ
2195 (LAC)
at
para
23
.
[5]
(2014)
6 BLLR 523 (LAC).
[6]
(2015)
36 ILJ 232 (LC)
.
[7]
(2016)
37 ILJ 313 (CC).
[8]
Act
66 of 1995 as amended.
[9]
See:
IMATU
obo Zungu v SALGBC and Others
(2010) 31 ILJ 1413 (LC).
[10]
(2016)
37 ILJ 313 (CC);
[2016] 3 BLLR 217
(CC);
2016 (3) BCLR 374
(CC).