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[2019] ZALCJHB 323
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National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (JS377/14) [2019] ZALCJHB 323 (11 October 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO:JS 377/14
In the matter between:
NATIONAL UNION OF
MINEWORKERS
First
Applicant
PETRUS
MNISI
Second Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION First
Respondent
HAROLD NTALE MATSEPE
N.O Second
Respondent
MODIKWA
PLATINUM MINES
Third
Respondent
Heard: 9 October 2019
Judgment
delivered: 11 October 2019
JUDGMENT
VAN NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the
second respondent (The arbitrator). In his award, the
arbitrator found that the second applicant (the employee) had been
fairly
dismissed by the third respondent, but for the third
respondent’s failure to afford the employee the opportunity to
place
mitigating factors before the chairperson of his disciplinary
hearing. Although he found that this omission amounted to an act of
procedural unfairness, the arbitrator elected to make no order of
compensation in that regard.
[2]
The review application was filed late. The award was received on 11
March 2014, and
the review application filed on 20 May 2014, 26 days
late. The applicants have applied for condonation.
[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. Further, the applicant must
provide an explanation that covers the full period of the
delay, in
terms that are comprehensive and convincing (see
eThekwini
Municipality v Ingonyama Trust
2013 (5)
BCLR 497
(CC)).
[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 in review applications
and an approach that affords due regard
to the statutory purpose of
expeditious dispute resolution.
[8]
In the present instance, the delay is not minimal but it is not
excessive. The explanation
for the delay is based on internal union
procedures for the assessment of cases, the instruction of attorneys
and the filing of
legal process. The deponent to the founding
affidavit in the condonation application states that the union’s
regional office
received the award and consulted with the national
office. A consultation with the employee followed, after which
instructions
were received to proceed with the review. The union’s
legal department was notified of this decision in mid- April 2014.
The matter was allocated to an official at the union’s head
office and ‘an instruction was then given to our attorney
of
record, hence the review application was filed outside of the
requisite time periods.’
[9]
The applicants seek to expand on the explanation for delay in the
replying affidavit
by including further detail, but that is not the
time nor is it the place to make out a case. The applicants are
obliged to make
out their case for condonation in their founding
affidavit, and the case must stand or fall on that basis. The
explanation that
has been proffered for the delay is not one that
takes the court into the applicants’ confidence. There is no
indication
as to what precisely transpired after mid-April, when the
statutory period had not yet expired. At that point, it will be
recalled,
the union had been notified of the instruction to review
the award. There is no detailed explanation as to the dates on which
the
matter was allocated to the Union’s head office for
assessment, when that assessment was concluded, when an instruction
was
given to the applicants’ attorney of record to draft the
application, and the period required for taking instructions and
drafting. Although the applicants acknowledge in their founding
affidavit that it is incumbent on them to ‘state in detail
and/or account for each lapse of period’, they simply fail to
do so.
[10]
All of the parties involved in the drafting of the application after
the instruction was given
in mid-April are either legal professionals
or union officials. They must have been aware of the six-week time
limit, and that
there was a degree of urgency required. That
notwithstanding, they appear to have litigated at their leisure.
[11]
Strictly, in the absence of an acceptable explanation for a delay
that exceeds what would be
considered minimal, it is not necessary
for the court to canvass the applicants’ prospects of success.
Again, the applicants
acknowledge that they must satisfy the court
that the employee was dismissed and that his dismissal was unfair.
However, the deponent
then submits that ‘I need not necessarily
have to dwell much on the prospects of success based on the fact that
the applicant
dismissal is not disputed by the respondent. As a
result the respondent does not bear the onus to proof that the
dismissal was
fair (sic).’
[12]
This entirely misconceives what is required of the applicants in an
application for condonation.
The applicants are required to
established that they have at least some
prima facie
prospects
of success in the review application. The onus of proof in a
dismissal dispute is entirely irrelevant – the main
application
is a review application in which the applicants are required to
establish that the arbitrator committed a reviewable
irregularity and
that his award is so unreasonable that no reasonable decision-maker
could come to it. The applicants proffer nothing
to establish that
they have prospects of success on review. Even if I were to have
regard to the papers filed in the review application
and assess the
applicants prospects of success from this perspective, I am not
persuaded that they are such that the delay and
poor explanation for
it are outweighed. The starting point is the onerous hurdle that
faces an applicant in a review application.
The applicant is required
to establish a reviewable irregularity that had the consequence of a
decision that falls outside of a
band of decisions to which
reasonable decision-makers could come on the available material. In
essence, the irregularity averred
by the applicants relates to the
weighing of the evidence. The arbitrator was confronted with two
mutually exclusive versions,
and for reasons that he articulated, he
decided that the third respondent’s version was the more
probable. There is nothing
inherently irrational or unreasonable
about that conclusion or its consequence, i.e. the decision that the
employee has committed
an act of serious misconduct. A reviewing
court must necessarily no interfere too readily with credibility
findings made by arbitrators.
In so far as the applicants rely on the
arbitrator’s conclusions in relation to procedural fairness, a
finding of procedural
unfairness does not automatically entitle an
applicant to compensation. This is especially so where, as in the
present case, the
employee failed to lead evidence as to which
mitigating circumstances he wished to place before the chairperson of
the disciplinary
enquiry. In matters (such as the present) where the
ground for review amount to no more than a broad-based attack on the
arbitrator’s
assessment of the evidence, credibility findings
and determination of where the probabilities lie, a reviewing court
must be particularly
cautious not to stray into the area reserved for
appeals. Equally, applicants must avoid dressing up what are in
essence appeals
as reviews. In short, the prospects of success in the
present instance are not such so as to ignore an inadequate
explanation for
the delay. In short: the applicants’ prospects
of success are minimal, if they exist at all.
[13]
Finally, I must take into account that the award under review was
issued some 5 and a half years
ago. The interests of justice would
not be served by the review being heard, with the prospect of the
matter being remitted to
the CCMA for rehearing (as the applicants’
counsel urged me to do). In my view, the interests of expeditious
dispute resolution
and finality trump, and condonation thus stands to
be refused.
[14]
The third respondent left the issue of costs in the court’s
hands. In this court, costs
do not necessarily follow the result. For
the purposes of s 162 of the LRA, the interests of the law and
fairness are best satisfied
by there being no order as to costs.
I make the following
order:
1.
Condonation for the late filing of the
review application is refused.
2.
The review application is dismissed.
3.
There is no order as to costs.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv. Phkubje instructed by Moseamo Papola Inc
For the respondent: Adv.
A Makka instructed by Cliffe Dekker Hofmeyr