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[2019] ZALCJHB 115
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Moabelo and Others v Christal Clean Hygiene and Cleaning Services (Pty) Ltd and Others (JR1004/17) [2019] ZALCJHB 115 (22 May 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR1004/17
In
the matter between:
ROSINAH
MOABELO AND OTHERS
Applicants
And
CHRISTAL CLEAN HYGIENE
AND CLEANING
SERVICES
(PTY) LTD
First
Respondent
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION Second
Respondent
SAM
ALIDZULWI MUVHANGO
N.O
Third
Respondent
Heard
:
09
January 2019
Delivered
:
22 May 2019
JUDGMENT
NTSHEBE,
AJ
Introduction
[1]
The applicants seek an order condoning the late service and filing of
the review application. The award that the applicants seek to review
and set-aside was issued on 6 October 2014. The review
application was instituted in June 2017. In essence, on the
applicants’ own version, the review application is 30 months
out of time.
[2]
The applicants’ explanation is briefly that they instructed an
attorney,
Nyoffu to challenge the arbitration award. However, they
did not have money for his fees as some of them were earning too
little
whilst others were not employed.
[3]
As a result, in early 2015, they approached Mokopane Labour Center
but
were referred to the Commission for Conciliation, Mediation and
Arbitration (CCMA) Polokwane offices. They attended at the Polokwane
offices of the CCMA on four occasions without any assistance. Around
June or July 2015, they were told that the matter was out
of the
CCMA’s hands and that they should approach this Court.
[4]
As they are based in Mokopane, they could not afford to travel to
Johannesburg.
As a result, they approached the Law Society’s
offices in Polokwane and were referred to a certain attorney, Mr
Kgomo based
in Mahwelereng. The applicants state that they went to Mr
Kgomo’s office about three times but no assistance was
forthcoming.
As a result, they then approached another attorney, Mr
Mamabolo who demanded an amount of R50,000.00 before he could assist
them.
[5]
Due to the fact that they could not afford Mr Mamabolo’s fees,
they
returned to Nyoffu. Nyoffu agreed to assist the applicants with
their provident funds. According to the applicants, Nyoffu went
on to
claim from the provident fund and that resulted in some of the
applicants being paid and others not. This was in September
2016 and
nothing was done until they met their current attorneys in June 2017
when the review application was instituted.
[6]
In dealing
with condonation applications, the Constitutional Court, per Zondo J
in
Grootboom
v National Prosecuting Authority and Another
[1]
;
held that:
“
Although the
existence of the prospects of success in favour of the party seeking
condonation is not decisive, it is an important
factor in favour of
granting condonation. The interests of justice must be
determined with reference to all relevant factors.
However, some of
the factors may justifiably be left out of consideration in certain
circumstances. For example, where the delay
is unacceptably excessive
and there is no explanation for the delay, there may be no need to
consider the prospects of success.
If the period of delay is short
and there is an unsatisfactory explanation but there are reasonable
prospects of success, condonation
should be granted. However, despite
the presence of reasonable prospects of success, condonation may be
refused where the delay
is excessive, the explanation is non-existent
and granting condonation would prejudice the other party. As a
general proposition
the various factors are not individually decisive
but should all be taken into account to arrive at a conclusion as to
what is
in the interests of justice.”
[7]
In
Collett
v Commission for Conciliation, Mediation and Arbitration
[2]
,
a unanimous judgement of the Labour Appeal Court LAC, Musi AJA held
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.”
[8]
In this matter, the period of delay is more than two years. This is
undoubtedly
an excessive delay.
[9]
In respect of the explanation offered by the applicants is not
reasonable
at all. In fact, it amounts to no explanation when
considering the period of delay. There is no mention as to when
exactly did
they attend to the Law Society’s offices in
Polokwane, when they went to Kgomo Attorneys and also Mamabolo
Attorneys. There
are periods which have also not been explained by
the applicants. For example, there is no explanation for the period
between September
2016 to June 2017. The applicants’
explanation amounts to no-explanation at all when one has regards to
the excessive period
of delay.
[10]
Based on the excessive delay, the unsatisfactory explanation and the
law, the applicants
have failed to make a case for the granting of
condonation.
Costs
[11]
Although the applicants’ condonation application is way out of
time, I do not believe
that it will be in the interests of justice
and fairness to order a costs order against them.
[12] In the
premises, I make the following order;
Order
1.
The application for condonation in respect
of the review application is dismissed; and
2.
No order as to costs
_________________________
T. Ntshebe
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicants:
Mr MES Makinta of ES Makinta Attorneys
For
the Respondent:
Mr K McAdam of Lee and McAdama Attornyes
[1]
(2014) 1 BLLR 1 (CC)
[2]
[2014] 6 BLLR 523
(LAC)