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 231
|
|
Pilane v Friedman NO and Others (JR1069/17) [2019] ZALCJHB 231 (29 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG JUDGMENT
Not
reportable
CASE
NO: JR1069/17
In the matter between:
ARTHUR
THABO PILANE
Applicant
and
COMMISSIONER:
SHAAM FRIEDMAN N.O.
First
Respondent
DISPUTE RESOLUTION
CENTRE FOR
MOTOR
INDUSTRY BARGAINING COUNCIL Second
Respondent
SHAFI
SERVICE
STATION
Third Respondent
Heard:
27 August 2019
Judgment
delivered: 29 August 2019
JUDGMENT
VAN NIEKERK J
[1]
This is an unopposed application to review and set aside an
arbitration award issued by
the second respondent (the arbitrator).
In her award, the arbitrator found that the applicant had failed to
establish acts of unfair
labour practices that he alleged the
respondent had committed and dismissed the applicant’s referral
to arbitration.
[2]
The arbitration award was issued on 25 April 2017. The present
application was filed
only on 28 March 2018 almost a year later. The
applicant has sought condonation for the late filing of the review
application.
[3]
Condonation is not there merely for the asking, nor are applications
for condonation
a mere formality (see
NUMSA v Hillside Aluminium
[2005] ZALC 25
;
[2005] 6 BLLR 601
(LC);
Derrick Grootboom v National Prosecuting
Authority & another
[2014] 1 BLLR (CC)). A party seeking
condonation must make out a case for the indulgence sought and bears
the onus to satisfy the
court that condonation should be granted.
[4]
This court is required to exercise a discretion, having regard to the
extent of the
delay, the explanation proffered for that delay, the
applicant’s prospects of success, and the relative prejudice to
the
parties that would be occasioned by the application being granted
or refused.
[5]
In this court, that formulation, which has its roots in
Melane
v Santam Insurance Co Ltd
1962 (4) SA
531
(A), has 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. In
National
Union of Mineworkers v Council for Mineral Technology
[1999]
3 BLLR 209
(LAC) the LAC said the following:
…
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.
[6]
This principle was reaffirmed in
Collett v Commission for
Conciliation, Mediation and Arbitration
[2014] 6 BLLR 523
(LAC),
a unanimous judgement of the 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. In
NUM v Council for Mineral Technology
[1999] 3 BLLR
209
(LAC) at para 10, it was pointed out that in considering whether
good cause has been shown the well-known approach adopted in
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532C-D …
Should be followed but:
‘
There
is a further principle which is applied and that is 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 delay, an application
for
condonation should be refused.’
The submission that the
court a quo had to consider the prospects of success irrespective of
the unsatisfactory and unacceptable
explanation for the gross and
flagrant disregard of the rules is without merit.
[7]
In review applications, there is a further consideration that must
necessarily be
taken into account, consequent on the publication of
this court’s practice manual and recent amendments to the LRA.
In
Makuse v CCMA & others
[2015] 12 BLLR 1216
(LC),
Myburgh AJ alluded to the measures instituted to address systemic
delays, particularly in review applications. The practice
manual,
introduced in April 2013, records that a review application is ‘by
its very nature an urgent application’.
The practice manual
also requires that all of the necessary papers in any review
application be filed within 12 months of the date
of the launch of
the application. As the court observed, the corrective steps taken by
this court and the legislature (in the form
of the 2014 amendments to
the LRA) the statutory imperative that labour disputes must be
effectively and thus expeditiously resolved.
What this requires is a
strict scrutiny of condonation applications and an approach that
affords due regard to the statutory purpose
of expeditious dispute
resolution.
[8]
In the present instance, the applicant states that he received the
award on 22 May
2017. The application was filed some 37 weeks (or
nine months) late which by any account, is an excessive delay. The
explanation
proffered for the delay is one which is primarily to the
effect that the applicant is a layperson and had difficulty, in the
absence
of legal skills and legal representation, in complying with
the prescribed time limit. The applicant states that he approached
the pro bono office as early as June 2017, where he was advised that
he had no prospects of success. Undeterred by this advice he
proceeded to obtain the records of the hearing under review and
preparing the application and to seek further advice from other
sources. While I accept that the applicant genuinely attempted
to process the application as best he could with the resources
at his
disposal, the explanation that he has provided is simply not adequate
given the extent of the delay. In terms of the principles
referred to
above, that disposes of the application for condonation. However,
even if I were to give consideration to the applicant’s
prospects of success, in my view, these are minimal if they exist at
all. In essence, the arbitrator rejected the applicant’s
contention that the respondent had committed various unfair labour
practices. Central to the applicant’s complaint was that
he was
not given overtime work, that he was discriminated against, and that
the respondent unilaterally changed his terms and conditions
of
employment. It should be recalled that in the definition of unfair
labour practice contained in s 186 (2) of the LRA, an unfair
labour
practice is defined in specific terms. It is a closed list, and does
not admit of all and any grievance that an employee
might have
against his or her employer. It does not contemplate acts of
discrimination (these must be brought in terms of the Employment
Equity Act), nor does it contemplate unilateral change to terms and
conditions of employment. To the extent that the applicant’s
complaints relate to his hours of work, these are matters regulated
by the Basic Conditions of Employment Act and not the unfair
labour
practice. In short, the applicant did not establish in the course of
the arbitration hearing that the respondent was guilty
of any of the
specific acts that are listed in s186 as potentially comprising
unfair labour practices, and the arbitrator was not
unreasonable in
coming to the conclusion that she did.
[9]
In summary: the present application was filed inordinately late, with
no satisfactory
explanation for the delay and in circumstances where
the applicant’s prospects of success are poor. It follows that
condonation
stands to be refused.
I make the following
order:
1.
Condonation for the late filing of the
review application is refused.
2.
The review application is dismissed.
André van Niekerk
Judge
REPRESENTATION
For the applicant: In
person