About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 174
|
|
Drift Reactions CC v Commission for Conciliation, Mediation and Arbitration and Others (JR2726/16) [2019] ZALCJHB 174 (19 July 2019)
the
labour court of South Africa, Johannesburg
Not
Reportable
Case no: JR 2726/16
In the matter between:
DRIFT REACTIONS
CC Applicant
And
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION First
Respondent
COMMISSIONER MAMISILE
EKWESWA
N.O
Second Respondent
COMMISSIONER LANTHIS
TAYLOR
N.O
Third Respondent
LUFUNO NORMAN MULAUDZI
Fourth
Respondent
Heard: 9 July 2019
Delivered:
19 July 2019
JUDGMENT
OLIVIER
AJ
Introduction
[1]
This is an application to review and set
aside a default arbitration award issued by the First Respondent on 6
July 2016 and which
default award was made by the Second Respondent.
Alternatively the Applicant applies to review and set aside a
rescission ruling
issued by the Third Respondent on 30 September 2016
under the same case number.
Background facts
[5]
The Applicant employed the Fourth
Respondent as a security officer on 1 January 2013. The
Applicant dismissed the Fourth Respondent
on 30 September 2015
following a disciplinary hearing. The Fourth Respondent was
dismissed for absence without leave during
the period 15 to 19
October 2015.
[6]
The Fourth Respondent referred a dispute to
the First Respondent on 3 November 2015. An arbitration was
held on 24 November
2015 and because the Applicant did not attend a
default arbitration award dated 8 December 2015 was issued ("the
first default
award"). The Fourth Respondent thereafter
instructed the sheriff to attend at the Applicant's premises in order
to enforce
the award. .
[7]
The Applicant then applied to the Second
Respondent to have the first default award rescinded. The
Applicant's representative
contended that the incorrect fax number
had been used and it was not aware of the referral nor the set down
of the matter by the
First Respondent. On 31 May 2016 the first
default award was rescinded.
[8]
It appears from the pleadings that during
the course of the application to have the first default award
rescinded, the Applicant
was represented by an employees’
organisation, the South African United Employers Organisation
("SAUEO").
The Applicant had mandated such employer's
organisation and more particularly its representative Mr. Pierre
Anton Govea to represent
it in respect of the rescission
proceedings. At all relevant times the aforesaid SAUEO and Mr.
Govea indicated that it will
accept service of any documents at the
following fax no: (011) 954-3803.
[9]
The First Respondent thereafter set the
matter down for a hearing on 5 July 2016. The Applicant was
informed of this set down
by a notice of set down sent to the fax
number provided by SAUEO and Mr. Govea, however, the Applicant failed
to attend the hearing.
Pursuant thereto a second default
arbitration award was issued on 8 July 2016 ("the second default
award").
[10]
On 5 August 2016 the sheriff again attended
at the Applicant's premises to enforce the second default award.
SAUEO through
Mr. Govea then represented the Applicant in launching a
rescission application in relation to the second default award.
This
application was made on 6 July 2016. In the application
the Applicant contended that the First Respondent used the incorrect
fax number to notify it of the arbitration. The fax number
provided by Mr. Govea was used by the First Respondent.
The
Applicant contended that such number was no longer in use and that it
had not received the notice of set down.
[11]
On 30 September 2016 the Third Respondent
issued a ruling dismissing the application to rescind the second
default award ("the
second rescission ruling").
[12]
The Applicant was then advised by SAUEO and
Mr. Govea to bring an application to rescind the second rescission
ruling. This
ill-advised step also had an unfortunate ending in
that on 3 November 2016 Commissioner Gcobisa Gosa ruled that the
First Respondent
lacked jurisdiction to entertain the Applicant's
rescission application.
The review application
and the application for condonation
[13]
This
review application was launched by the Applicant on 13 December 2016.
Section 145 of the Labour Relations Act
[1]
(LRA),
provides that any party who brings a review application in relation
to an arbitration award must do so within six weeks of
a date that
the award was served on the Applicant. Section 145(1A) provides
that this Court may in good course shown condone
the late filing of
such an application.
[14]
In the founding affidavit to the review
application the Applicant acknowledges that it must overcome the
hurdle to apply for condonation
in respect of the late filing of the
review application. As correctly pointed out by the Third
Respondent's counsel, assuming that
the second default award and the
second rescission ruling were received on the dates that appear on
them, the review application
in respect of the second default award
is just short of four months late and in respect of the second
rescission ruling is four
weeks late.
[15]
The Applicant fails to deal with the
aforesaid substantial delays and settles for an explanation where it
blames SAUEO and more
particularly the firm of attorneys SAUEO
instructed for the delay. What the Applicant furthermore fails to
explain entirely, after
its’ alleged resignation of its
membership from SAUEO on 3 November 2016, is what steps it had taken
before or after this
date to expedite its review application.
Should one have regard to the date of the second rescission ruling
i.e. 30 September
2016 the review application should have been filed
by at least 15 November 2016. The review application is only
served and
filed by 13 December 2016. A further four weeks
later.
[16]
No explanation whatsoever is provided for
the aforesaid delay. At all relevant times the Applicant chose
to be represented
by SAUEO and it was also Mr. Govea of SAUEO that
provided the telefax number to the First Respondent to which the
different set
down notices had been sent.
[17]
The Fourth Respondent is a person with no
substantial means and had to rely on the assistance of a pro-bono
attorney provided by
SASLAW. He had to endure three rescission
applications, two arbitrations and now this late review application.
His
prejudice is self-evident.
[18]
The
law on condonation is trite and has been codified in
Melane
vs Santam Insurance Company Ltd
[2]
.
Various courts have expanded further on the factors identified in
Melane
or alternatively elaborated on the principles set out therein.
In
NUM
vs Council for Mineral Technology
[3]
,
the
Labour Appeal Court (LAC) held
[4]
"…
that
without a reasonable and acceptable explanation for the delay the
prospects of success are immaterial and without prospects
of success
no matter how good the explanation for the delay, an application for
condonation should be refused".
[19]
Furthermore,
it must be noted that in
SA
Post Office Ltd vs Commission for Conciliation Mediation and
Arbitration and others
[5]
the
LAC held that where the matter deals with an individual dismissal the
Court must be cautious before exercising its discretion
in favour of
the indulgence sought, because there is an imperative placed on the
speedy and expeditious resolution of such disputes.
[20]
The Applicant has failed to provide an
explanation that is sufficient to enable the court to understand how
it really came about
that it failed to file and serve its review
application in time and to assess the Applicant's conduct and
motives.
[21]
The
LAC in
Superb
Meat Supplies CC vs Maritz
[6]
held
the following to say in relation to the litigants duties:
“
In
this court and the Supreme Court of Appeal there have been frequently
repeated judicial warnings that there is a limit beyond
which a
litigant cannot escape the results of his attorneys’ lack of
diligence or the inefficiency of the explanation tendered.
It
has never been the law that invariably a litigant will be excused if
the blame lies with the attorney. To hold otherwise
might have
a disastrous effect upon the observance of the rules of this court
and set a dangerous precedent. It would invite
or encourages
laxity on the part of practitioners".
[22]
Furthermore the Court is of the view that
the Applicant itself cannot be absolved from blame as it appears to
have shown a complete
disinterest in the conduct of the case and
offered no acceptable explanation for taking reasonable steps to
bring this matter to
completion.
[23]
In the premises, I make the following
order:
Order
The
application for review is dismissed with costs;
The
Applicant is ordered to comply with the arbitration award dated 6
July 2016.
____________________
G. J. P. OLIVIER
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: D.J
Coetsee of Coetsee Attorneys
For
the Respondents: V
Reddy of Norton Rose Fulbright
[1]
No.
66 of 1995, as amended.
[2]
1962
(4) SA 531 (A).
[3]
[1999]
3 BLLR 209 (LAC).
[4]
Ibid
at
p. 211 at paragraphs G to H.
[5]
[2012]
1 BLLR 30 (LAC).
[6]
(2004)
25 ILJ 96 (LAC).