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[2019] ZALCJHB 322
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SAPU obo Sekati v Sithole NO and Others (JR1127/17) [2019] ZALCJHB 322 (29 October 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
no: jr 1127/17
In
the matter between:
SAPU
obo MAKGETSI ROSINAH SEKATI
and
S
SITHOLE N.O.
SSSBC
SAPS
CHRISTINA
SMITH
Applicants
First
Respondent
Second
Respondent
Third
Respondent
Fourth
Respondent
Heard:
25 October 2019
Judgment:
29 October 2019
JUDGMENT
VAN
NIEKERK J
[1]
The applicant seeks to review and set aside an arbitration award
issued by the first
respondent (the arbitrator). In his award, issued
on 30 September 2016, the arbitrator dismissed a claim by the
applicant that
she had been subjected to an unfair labour practice in
relation to promotion.
[2]
The arbitration award was received on 30 September 2016. The review
application was
filed only on 15 June 2017. The applicant accepts
that the application was filed some 216 days late, an inordinate
delay by any
account.
[3]
The general principles to be applied are well-established.
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]
The applicant for condonation must offer an explanation for the full
length of the
delay (see
Independent Municipal and Allied Trade
Union obo Zungu v SA Local Government Bargaining Council and others
(2010) 31
ILJ
1413 (LC)). In
eThekwini Municipality v
Ingonyama Trust
2013 (5) BCLR 497
(CC), the Constitutional Court
said the following:
In a case where the delay
is not a short one, the explanation given must not only be
satisfactory but must also cover the entire
period of the delay. Thus
in
Van Wyk v Unitas Hospital and another (Open Democratic Advice
Centre as Amicus Curiae),
this Court said in this regard:
‘
An applicant for
condonation must give a full explanation for the delay. In addition,
the explanation must cover the entire period
of the delay. And, what
is more, the explanation given must be reasonable. The explanation
given by the applicant. Short of these
requirements. Her explanation
for the inordinate delay is superficial and unconvincing.
[8]
Where an applicant seeks to ascribe blame for a delay on the part of
a legal or other
representative, the courts have made clear that the
applicant may not rest content in the knowledge that the
representative concerned
has been furnished with instructions –
it is incumbent on the applicant to follow up and ensure that those
instructions are
being executed. There is a limit beyond which a
litigant cannot escape the consequences of a representative’s
lack of diligence
(see
Salojee and another NNP v Minister of
Community Development
1965 (2) SA 135
(A)). An applicant in
these circumstances must satisfy the court that none of the delay is
to be imputed to him or herself.
What this requires is that the
applicant follow up to ensure that his or her instructions are being
executed, or to take steps
to file a review application on his or her
own behalf. They are pro forma documents available to applicants for
this purpose. In
short, the applicant in such circumstances must
satisfy the court that none of the delay is to be imputed to him or
herself (see
Mashishi v Mdladla
(2018) 39
ILJ
167
(LC)).
[9]
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.
[10]
In the present instance, the period of delay, as I have noted, is
excessive. The explanation for the
delay is one that seeks to
attribute blame to the applicant’s representatives. First, she
states that she advised her union
representatives that she was not
happy with the award and instructed him to arrange for the award to
be reviewed. On 31 October,
the union representative sent a letter to
the union’s provincial office. It was only on 23 November 2016
that the provincial
office sent a letter to the national office. On
17 January 2017, the national office sought an opinion from the
applicant’s
attorneys of record. They replied on 23 January
2017 requesting a legible copy of the award and a summary of events
that led to
the award. This was done on 30 January 2017 when was sent
to the attorneys. On 10 February 2017 the applicant’s attorneys
of record received an email from the union’s national office
requesting a briefing. The consultation was duly arranged on
19 May
2017 but took place only on 22 May 2017. During that meeting, the
attorney requested information that was not readily available
–
that information was finished to him on 26 May 2017. On 13 June 2017,
drafts of both reviewed condonation application was
sent to the union
official for consideration.
[11]
The explanation, as I have indicated, is one that centres on the
failure by the applicant’s union
representatives and attorneys
of record to pursue the review application with due diligence. The
applicant has furnished no substantive
explanation for why she failed
to follow up on the instruction that she had given more than once
during the course of the period
of delay. Further, there are periods
of delay for which no explanation is proffered. These include the
periods 31 October 2016
to 23 November 2016; 29 November 2016 to 17
January 2017; and 10 February 2017 to 9 May 2017. Further, the
applicant has been assisted
throughout by an experienced trade union
official and about professional legal practitioners. By mid-November
2016, they must have
known that the six-week statutory time limit was
to expire. By the time the union’s provincial office sent a
letter to the
national office seeking permission to review the award,
it was already out of time this notwithstanding, both the union and
the
attorneys thereafter did not act with due diligence and indeed,
conducted themselves as if the time limit in s 145 did not exist.
The
applicant was poorly served by her advisers, but her failure to make
persistent enquiries as to progress in the matter and
to ensure that
her instructions were being attended to with diligence render her
explanation for the delay unsatisfactory.
[12]
In the absence of a satisfactory explanation for an
inordinate delay in filing the review application, it is not
necessary for the court to have regard to the applicant’s
prospects of success. Insofar as both parties raised the issue
of
prejudice, the applicant’s counsel submitted that the merits of
the case raised issues related to transformation and that
it was in
the broader public interest for the arbitrator’s findings to
the subject of review. On the other hand, the respondents
counsel
placed emphasis on the right to finality, and submitted that it was
not in the interests of justice for the matter to be
remitted for
rehearing (the remedy sought by the applicant) in circumstances where
the events that were the subject of the dispute
took place more than
five years ago. In my view, the issues raised during the course of
the arbitration are not such that their
importance to the public
interest outweighs the statutory purpose of expeditious dispute
resolution. If the applicant had at the
relevant time accorded the
matter the importance she now wishes to attach to it, the application
would have been served within
the prescribed time limit.
[13]
Finally, in relation to costs, the court has a broad discretion to
make orders for costs according
to the requirements of the law and
fairness. While I appreciate that the parties to the present dispute
are collective bargaining
partners, the present case is not one that
stands to prejudice any collective bargaining relationship between
them. This court
is inundated by review applications, many of them
filed way beyond the prescribed time limit. Parties ought to be
discouraged from
pursuing applications in those circumstances, save
in the most exceptional circumstances. This case does not fall into
that category.
In my view, the requirements of the law and fairness
are best served by the applicant paying the third respondent’s
costs.
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
APPEARANCES
For
the applicant: Adv. R Tulk, with her Adv. A Karim, Instructed by
Thapelo Kharametsane attorneys
For
the third respondent: Adv. S Tilly, instructed by the state attorney.