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[2019] ZALCJHB 248
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POPCRU and Another v Muthukwane NO and Others (JR1771/16) [2019] ZALCJHB 248 (13 September 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case No: JR1771/16
In the matter between:
POPCRU First
Applicant
SS
NDLOVU Second
Applicant
and
JACKSON MUTHUKWANE,
N.O
(cited in his capacity
as Commissioner) First
Respondent
SAFETY AND SECURITY
SECTORAL
BARGAINING
COUNCIL Second
Respondent
SOUTH AFRICAN POLICE
SERVICES Third
Respondent
Heard: 28 May 2019
Delivered:
13 September 2019
JUDGMENT
LALLIE,
J
Introduction
[1]
This is an application to review and set aside an arbitration award
of the first respondent
(the arbitrator). The applicants delayed in
bringing the application and filed an application to have the delay
condoned. The third
respondent opposed both the review and
condonation applications.
Condonation
application
[2]
The condonation application will be determined first as its outcome
will determine
the necessity of considering the review application
as, should the applicants fail to show good cause, condonation cannot
be granted.
Absent condonation the review application will not be
properly before Court. It is trite that in determining whether the
applicants
have shown good cause to have the delay condoned the court
has to consider the extent of the lateness, the explanation for the
delay, prospects of success in the review application, prejudice each
party stands to suffer should condonation be granted or refused
as
well as the interest of justice. All the factors should be considered
collectively and balanced against each other
[1]
.
[3]
The extent of the delay is three weeks and one day. Although the
third respondent
argued that it is excessive I disagree. The
explanation proffered for the delay is that the second application
lost his mobile
telephone after the arbitration and it became
impossible for the first applicant to communicate the arbitration
award to him. The
review process could only be initiated in August
2016 after the second applicant had physically gone to the first
applicant’s
offices to enquire about the outcome of the
arbitration. After the visit the first applicant had to follow its
internal procedures
for filing review applications. The process added
to the delay as relevant decision-makers were not available. The
decision to
enlist the services of a law firm to file the review
application was taken and the application was filed on 8 September
2016.
[4]
The third respondent opposed the application for condonation on the
grounds that the
applicants’ had not shown good cause to have
it granted. It attacked the applicant’s failure to give
specific dates
including the date on which the second applicant
visited the first applicant’s offices to enquire about the
outcome of the
arbitration. It also attacked the applicants’
attorneys for filing the application 10 days after receiving
instructions and
the lack of detail in respect of the delay caused by
the first applicant’s internal procedures.
[5]
While I agree with the third respondent that the applicants’
had to provide
a reasonable explanation for the entire delay, I have
to take into account that a reasonable explanation is not required to
be
flawless. The applicants could have filed the review application
earlier, however, the lack of detail in their explanation of the
delay did not render it unreasonable. The third respondent did not
disclose the prejudice it stands to suffer should condonation
be
granted while the gravity of the prejudice of losing the right to be
heard should condonation be denied is undeniable. The applicants
made
allegations which, if proved, would render their review application
successful. They, therefore, have good prospects. A consideration
of
the relevant factors supports the applicants’ version that they
have shown good cause. Their application for condonation
should
succeed.
[6]
The factual background of this matter is that the second applicant
was employed by
the third respondent as a constable. He shot and
killed Mr Seretsane with his service firearm on 29 June 2013. On the
same date
he pointed that same firearm at Mrs Motsamai. The third
respondent instituted disciplinary action against him in which he
faced
a charge of murder and unlawfully pointing his service firearm.
The second applicant was dismissed and the first applicant challenged
the fairness of the dismissal by referring a dispute to the second
respondent (the bargaining council). Having arbitrated the dispute,
the arbitrator found the sanction of dismissal appropriate and the
second applicant’s dismissal substantively fair. He, however,
found the dismissal procedurally unfair and awarded him compensation
equivalent to his two months’ salary.
Grounds
of review
[7]
The applicants based their review application on errors made by the
arbitrator in
the conduct of the arbitration. The third respondent
correctly submitted that the applicants failed to make out a case for
review
in their founding affidavit. As the applicants’ case is
based on the arbitrator’s alleged errors the applicable test
for review is the one laid down in
Herholdt
v Nedbank
[2]
where it was held that irregularities committed by arbitrators in the
conduct of arbitrations will render the awards reviewable
only when
they result in unreasonable awards. An award becomes unreasonable
when the arbitrator misconceives the dispute before
him or her by
conducting the wrong enquiry incorrectly or reaching an unreasonable
decision.
[8]
The applicant bears the onus of establishing valid grounds for
review. Rule 7A (2)(c)
requires the applicant to set out in the
founding affidavit factual and legal grounds upon which the applicant
relies to have the
award reviewed and set aside. The applicants did
not disclose the facts on which their grounds for review are based.
They submitted
that the arbitration award is wrong in fact and in law
and was irregularly arrived at. The applicants further submitted that
the
arbitrator disregarded and misinterpreted evidence tendered at
arbitration. He failed to comply with the provisions of the Labour
Relations Act
[3]
(LRA)
pertaining to conducting arbitrations properly and fairly. He made
factual findings which are inconsistent with evidence.
He exceeded
his powers and failed to apply his mind to the relevant facts and
law.
[9]
In the absence of factual averments on which defects the applicants
seek to base their
review application on, the submissions do not
constitute valid grounds for review. The reason is that the
applicants did not establish
the manner in which the arbitrator acted
irregularly. The third respondent established that the arbitrator
dealt with the issue
before him, applied his mind, considered the
evidence led and issued a reasonable award. The applicant did not
establish the existence
of valid grounds for review. They therefore
presented no grounds for this court to interfere with the arbitration
award. Their
application cannot succeed.
[10]
The third respondent sought a costs order against the applicants on
the grounds that they brought
a review application devoid of merit.
The applicant denied. I have considered the submission of costs and
the provisions of section
162 of the LRA. Although the applicants’
case was not strong, I am not convinced that the applicants’
case was till
born as the third respondent submitted.
[11]
In the premise, the following order is made:
Order
1. The
late filing of the review application is condoned.
2. The
application for review is dismissed.
3. No
order is made as to costs.
__________________
Z. Lallie
Judge
of the Labour Court of South Africa
Appearances:
For the
applicant: Tlou
Makgamatha of MM Mitti Inc. Attorneys
For the Respondent:
Advocate J. Ramaepadi
Instructed
by: State
Attorney
[1]
See:
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A);
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
2000 (2) SA 837 (CC).
[2]
(2013) 34 ILJ 2795 (SCA).
[3]
Act 66 of 1995, as amended.