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[2019] ZALCJHB 101
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Jojo v Element Six Production (Pty) Ltd (JS138/19) [2019] ZALCJHB 101 (15 May 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JS 138/19
In
the matter between:
BUSISIWE
JOJO
Applicant
and
ELEMENT
SIX PRODUCTION (PTY) LTD
Respondent
Heard: 10 May 2019
Delivered: 15 May
2019
Summary: Application
for condonation 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 was employed by the
Respondent as a production superintendent. In September 2017 the
Respondent embarked on a retrenchment
process.
[2]
The Applicant was notified on 29 November
2017 that her services would terminate on 31 December 2017 due to the
Respondent’s
operational requirements. The Applicant
subsequently referred an unfair dismissal dispute to the Commission
for Conciliation, Mediation
and Arbitration (CCMA).
[3]
The dispute was conciliated on 17 April
2018 and a certificate of outcome was issued on that date. The
dispute was thereafter set
down for arbitration on 25 July 2018, on
which date a ruling was issued to the effect that the CCMA lacked
jurisdiction to adjudicate
the dispute.
[4]
The Applicant filed a statement of case as
well as an application for condonation for the late filing of the
statement of case on
28 February 2019.
[5]
The application for condonation is opposed.
The test for the grant
of condonation
[6]
The relevant legal principles to be applied
in an application for condonation are well established.
[7]
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]
.
[8]
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.’
[9]
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. 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.
[10]
In
Collett
v Commission for Conciliation, Mediation and Arbitration
[5]
the
LAC also 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.
[11]
The
onus is on the applicant seeking condonation 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.’
[12]
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 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.
[13]
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.
[14]
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.
[15]
It is in this context that the application
for condonation stands to be determined.
The degree of lateness
[16]
Section
191(11)(a) of the Labour Relations Act
[8]
(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.
[17]
In casu,
the
dispute relating to unfair dismissal for operational requirements had
to be referred within 90 days from 17 April 2018, thus
it had to be
filed by 16 July 2018. The statement of case was filed with this
Court only on 28 February 2019, clearly outside the
prescribed 90-day
period.
[18]
The dispute relating to an unfair dismissal
based on the employer’s operational requirements was referred
more than seven
months late.
[19]
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.
[20]
The degree of lateness is also material
considering the fact that the dispute arose as far back as December
2017, when the Applicant
was retrenched and almost 18 months later
the matter is not one step closer to trial, let alone ready for
trial. This is significant
as the relief that the Applicant seeks is
an order for retrospective re-instatement.
[21]
The degree of lateness should however not
be considered in isolation.
Explanation for the
lateness
[22]
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.
[23]
As
the Applicant seeks an indulgence from the Court and as she bears the
onus to satisfy the Court that condonation should be granted,
it is
incumbent upon her 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]
.
[24]
The explanation for the delay has to be
compelling, convincing and comprehensive and should cover every
period of the delay.
[25]
In the founding affidavit before me in
support of the application for condonation, the Applicant provided
the following explanation
for the delay:
25.1
Following the CCMA ruling of 25 July 2018,
one of the Applicant’s colleagues informed her that he knew an
attorney who would
refer the matter for all of the dismissed
individuals to the Labour Court. The Applicant made enquiries with
her colleague regarding
a meeting with the attorney on 31 July and 6,
13 and 14 August 2018.
25.2
On 21 August 2018 the attorney called the
Applicant and told her that a deposit was required before counsel
could be appointed to
draft a statement of case. It became clear to
the Applicant that the attorney would not work on her matter without
a deposit being
paid. This prompted her to contact Scorpion
Legal Protection (Scorpion) on 23 August 2018. Scorpion requested the
Applicant
to forward all the relevant documents as they would appoint
an attorney to assess the merits of the matter before a decision
would
be taken on whether the matter should be referred to the Labour
Court. The documents were received by Scorpion on 24 August 2018.
25.3
Scorpion appointed Talane Attorneys on 17
September 2018 to handle the Applicant’s matter and the said
attorneys drafted a
legal opinion that was sent to Scorpion on 24
September 2018 and awaited further instructions. Talane Attorneys
sent the legal
opinion to Ms Boitumelo.
25.4
On 1 October 2018, the Applicant contacted
Talane Attorneys to enquire about the progress of her matter when she
learned that the
said attorneys were still waiting for instructions
from Scorpion. On 3 October 2018 the Applicant followed up with
Scorpion, only
to learn that Talane Attorneys had sent the legal
opinion to Ms Boitumelo, who had since resigned from Scorpion. The
Applicant
was informed that Ms Makgatla was assigned to take over all
the files that were handled by Ms Boitumelo.
25.5
On 19 October 2018, Ms Makgatla called the
Applicant and informed her that new attorneys would be appointed to
deal with her matter.
On 22 October 2018 Marais Attorneys contacted
the Applicant and told her that she had to consult with them as her
matter had to
be referred to the Labour Court urgently.
25.6
On 23 October 2018, the Applicant consulted
at Marais Attorneys and she was informed that a statement of case
would be drafted the
very same day and filed and served to avoid the
late filing of the statement of case. The Applicant believed that her
matter was
receiving urgent attention.
25.7
On 4 December 2018, the Applicant followed
up with Scorpion as she was anxious to see a response from the
Respondent. She was informed
by Ms Makgatla that they had not
received a statement of case from Marais Attorneys. Ms Makgatla
undertook to follow up with Marais
Attorneys and to revert to the
Applicant.
25.8
When the Applicant followed up with Marais
Attorneys, she was informed that they never received instructions
from Scorpion to refer
the matter to the Labour Court. On 14 December
2018, Ms Makgatla informed the Applicant that Marais Attorneys had
not referred
her matter to the Labour Court and that Scorpion would
terminate their mandate and appoint another law firm to handle her
matter.
This would only happen the following year as most law firms
had already closed for the festive holidays.
25.9
On 20 January 2019, Ms Makgatla contacted
the Applicant and told her that they terminated the mandate of Marais
Attorneys and that
Scorpion would appoint new attorneys to deal with
her matter urgently.
25.10
Scorpion appointed Mitti Attorneys on 18
February 2019, and instructed them to provide a legal opinion on the
merits of the case.
Mitti Attorneys consulted with the Applicant on
19 February 2019. Mitti Attorneys received instruction from Scorpion
to proceed
with the matter on 21 February 2019 and the statement of
case was drafted and served on the Respondent on 22 February 2019.
[26]
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.
[27]
The dispute relating to unfair dismissal
based on the employer’s operational requirements had to be
referred by 16 July 2018.
There is no explanation as to why the
dispute was referred for arbitration, instead of adjudication by this
Court. The Applicant
has not attached the certificate of outcome to
her application and this Court is in no position to understand why
the matter was
referred for arbitration. Be that as it may, the
Applicant has to provide a convincing explanation for the period
between 16 July
2018 and 28 February 2019.
[28]
The Respondent, in its opposing affidavit,
took issue with the explanation tendered and raised concerns,
inter
alia,
that the Applicant’s case
is that she was let down by various attorneys, yet she attached no
proof to her affidavit to support
the allegations she made.
[29]
The Applicant indeed made various
allegations regarding the conduct of Scorpion and the attorneys they
had appointed since September
2018, but she has not attached a single
confirmatory affidavit to support her case. The Applicant made no
effort whatsoever to
obtain a statement or affidavit from any of the
attorneys she mentioned in her affidavit or from Ms Makgatla of
Scorpion. The allegations
made are no more than the Applicant’s
unsupported say-so.
[30]
To the extent that none of the parties
referred to deposed to a confirmatory affidavit, the allegations
relating to them, constitute
nothing but hearsay evidence, which this
Court cannot attach any weight to.
[31]
There is no explanation as to what happened
to the opinion drafted by Talane Attorneys on 24 September 2018 and
why Talane Attorneys’
mandate was terminated on 19 October
2018. There is further no explanation as to what happened with Marais
Attorneys after they
indicated on 23 October 2018 that a statement of
case would be drafted the same day and served and filed expeditiously
and why
their mandate was terminated on 14 December 2018. These
lacunae
could
have been filled had an affidavit been filed by any of the relevant
parties to explain what had transpired. The explanation
tendered by
the Applicant raises more questions than providing any answers.
[32]
A further difficulty is that on the
Applicant’s own version, Marais Attorneys informed her on 23
October 2018 that a statement
of case would be drafted the very same
day and filed and served to avoid the late filing of the statement of
case. Even if she
was unaware of the fact that her statement of case
had to be filed within a specific period, it is evident that she was
informed
on 23 October 2018 that her papers were to be drafted and
filed urgently to avoid the late filing thereof. The Applicant cannot
escape the consequences of this statement in her explanation and it
is unlikely that the Applicant was after 23 October 2018 still
unaware that there was a need to file her statement of case urgently.
[33]
The Applicant consulted Marais Attorneys on
23 October 2018 and followed up with Scorpion on 4 December 2018 when
she was informed
that her statement of case was not yet received from
Marais Attorneys. When the Applicant subsequently followed up with
Marais
Attorneys, she was informed that they never received
instructions from Scorpion.
[34]
The Applicant explained that this came as a
shock to her. It is unexplained why it came as a shock because the
Applicant stated
that between 23 October and 4 December 2018 she
maintained ongoing contact with the attorneys and Scorpion and she
constantly enquired
about the progress of her matter. This version is
improbable for a number of reasons. Firstly, the Applicant provided
no details
as to when she contacted Marais Attorneys or Scorpion
during the period 23 October and 4 December 2018. The only detail she
provided
is that she followed up with Scorpion on 4 December 2018 and
thereafter she contacted the attorneys herself. Secondly, if the
Applicant
indeed maintained ongoing contact and constantly enquired
about the progress of her matter, she would have known much earlier
that
no mandate was given to Marais Attorneys and that no statement
of case was received by Scorpion. It could not have shocked her to
find out that nothing had happened by 4 December 2018, if she indeed
constantly enquired about the progress of her case.
[35]
The only reasonable inference is that
between 23 October and 4 December 2018, the Applicant had not taken
any step to ensure that
her case is attended to urgently, as she was
by then aware that, that should have happened.
[36]
There is no explanation as to why it took
Scorpion from 14 December 2018 to 18 February 2019 to appoint another
attorney to deal
with the Applicant’s case.
[37]
It is evident that once Mitti Attorneys
were appointed, the matter was dealt with expeditiously. It raises
the question as to why
this did not happen when attorneys were
appointed on two previous occasions, which question remained
unanswered in the explanation
tendered.
[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 that 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 that the Applicant has not provided a
comprehensive, compelling or convincing explanation
for a material
period of delay, the prospects of success are immaterial, and thus
need not be considered.
Prejudice
[43]
The Applicant submitted that she would be
prejudiced should the application for condonation fail. This is so
because, she will not
have an opportunity to present her case to this
Court and the matter deserves to be heard. According to the
Applicant, the Respondent
will not suffer an prejudice as it could be
compensated for any delay by way of an appropriate cost order.
[44]
The Respondent on the other hand submitted
that if the Applicant indeed followed up with Scorpion as she
alleges, it is apparent
that Scorpion is to be blamed for the late
filing of her statement of case. The Respondent should not be
prejudiced by the negligent
conduct of the Applicant’s legal
advisor and her remedy lies in a civil claim against Scorpion.
[45]
Furthermore, the Respondent submitted that
one of the primary objects of the LRA is the effective and timeous
resolution of labour
disputes, that it followed a retrenchment
process in which the Applicant was dismissed, on more favourable
terms and attempting
to alleviate the negative consequences of the
dismissal to the greatest extent possible. The Respondent should not
be compelled
to incur further costs in defending this matter.
[46]
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. It is evident
that the Applicant has not pursued this
matter diligently, and almost 18 months after the Applicant had left
the Respondent’s
employ, the parties are not one step closer to
finality in this matter. I have already alluded to the fact that the
Applicant seeks
retrospective reinstatement, which is another factor
that would prejudice the Respondent where the dispute was referred
late to
this Court.
[47]
Most importantly, 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.
[48]
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.
[49]
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.
[50]
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 no order as to costs.
__________________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Ms
Makgamatha of M M Mitti Inc
Attorneys
For
the Respondent:
Mr J Olivier of Webber Wentzel
Attorneys
[1]
‘
Civil
Procedure in the Superior Court, Harms at B27.6.
[2]
1962
(4) SA 531
(A) at 532 C - F.
[3]
See
National
Union of Mineworkers 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)