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[2019] ZALCJHB 304
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Madzhie v General Public Service Sectoral Bargaining Council and Others (JR74/17) [2019] ZALCJHB 304 (8 November 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR74/17
In the matter between:
CAROLINE MADZHIE
Applicant
and
GENERAL PUBLIC SERVICE
SECTORAL
BARGAINING
COUNCIL
First
Respondent
PM NGAKO
N.O
Second Respondent
DEPARTMENT
OF COMMUNICATIONS
Third Respondent
Heard:
31 October 2019
Delivered:
08 November 2019
Summary:
Condonation application – time is of the essence in individual
dismissal disputes –
extensive delay ensuing from lack of
funds to pay attorneys’ legal fees –
claim
of lack of funds on its own cannot constitute reasonable explanation
for the delay – the applicant has to provide more
than a mere
claim that the reason for the delay is lack of funds – coupled
with poor prospect of success, the applicant failed
to show good
cause for the grant of condonation.
JUDGMENT
NKUTHA-NKONTWANA,
J
Introduction
[1]
In this application, the applicant seeks,
firstly, an order condoning the late filing of the review
application. Secondly, she seeks
an order reviewing and setting aside
the arbitration award issued by second respondent (arbitrator) under
case number GPBC 29/2015,
dated 19 September 2016. The arbitrator
found that the applicant failed to prove that she was constructively
dismissed.
[2]
There are other two ancillary applications,
one dealing with the late filing of the record and the other with the
substitution of
the third respondent by the National Minister of
Communications. The third respondent, Department of Communications,
is only opposing
the condonation and review applications. I deal
first with the application for condonation.
Degree of lateness and
the explanation for the delay
[3]
The applicant served and filed the review
application 10 weeks late and the reason for the delay is attributed
to lack of funds.
[4]
The applicant asserts that her attorney of
record received the award on 26 September 2016. On 28 September 2016,
her attorney advised
her that the award is bad and that she had an
option of launching a review application within six weeks of the
receipt of the award.
Also, she was advised that a legal opinion be
sought from counsel on the prospects of success.
[5]
At that time, she had an outstanding
account of R29 239.36 due to her attorney. Despite having
negotiated a fee of R11 400.
00 for the opinion, her attorney
was not prepared to take responsibility for counsel’s fees. She
then requested to pay counsel’s
fees directly into the
attorney’s trust account and settled the attorneys outstanding
account of R29 239.36 before he
could brief counsel. She could
not afford to settle the outstanding account as she had not secured
formal employment and her financial
situation was dire.
[6]
The applicant further asserts that after
perusing the award and the fact that the arbitrator found that she
had voluntarily resigned,
she resolved to review that award. It was
then that she tried all means necessary to source the funds to pay
her attorney and counsel
before the expiry of six weeks without
success.
[7]
It was only on 2 December 2016 that she
managed to secure an amount of R29 239.36. She then negotiated
with her attorney to
pay the costs of counsel from the same amount
and he was agreeable. Counsel was briefed and a consultation with him
took place
on 9 December 2016. The attorney and counsel went on
December holiday on 13 December 2016. The attorney reopened on 10
January
2017 and only to discover that counsel had emailed the legal
opinion on 3 January 2017. The attorney could only attend to
the drafting and settling of the review application on 12, 13 and 16
January 2017.
[8]
The third respondent poke holes in the
explanation proffered by the applicant. Firstly, it disputes the fact
that the applicant
did not have funds to settle the attorney’s
outstanding account as she had testified during the arbitration
proceedings that
she was self-employed. Secondly, she failed to open
up to the Court as to how she ultimately secured the funds and what
was the
source of her funds. Thirdly, there was no need for a legal
opinion because her attorney had already opined that the award was
bad in law. Finally, that the delay in launching the review
application is self-created as her attorney is experienced in labour
law and had been involved with the matter from the beginning. As
such, he could have drafted the review application without seeking
any legal opinion.
[9]
In turn, the applicant tried to close the
gaps identified by the third respondent in her replying affidavit.
She asserts, firstly,
that as a self-employed person, she earned less
than what she earned when she was in the employ of the third
respondent; secondly,
that the funds were secured by her husband
through a loan from two friends; and, lastly, she denies that her
attorney is an experienced
labour lawyer and could have drafted the
papers without waiting for a legal opinion.
Legal principles and
application
[10]
In
Steenkamp
and Others v Edcon Limited,
[1]
the
Constitutional Court
endorsed
the factors
that
must be considered in determining whether it is in the interest of
justice to grant condonation as set out in
Grootboom
v National Prosecuting Authority.
[2]
It was stated:
‘
[36]
Granting condonation must be in the interests of justice. This Court
in Grootboom set out the:
‘
[T]he
standard for considering an application for condonation is the
interests of justice. However, the concept ‘interests
of
justice’ is so elastic that it is not capable of precise
definition. As the two cases demonstrate, it includes
:
the nature of the relief sought; the extent and cause of the delay;
the effect of the delay on the administration of justice and
other
litigants; the reasonableness of the explanation for the delay; the
importance of the issue to be raised in the intended
appeal; and the
prospects of success
. It is crucial to
reiterate that both
Brummer and Van Wyk
emphasise that the ultimate determination of what is in the interests
of justice must reflect due regard to all the relevant factors
but it
is not necessarily limited to those mentioned above. The particular
circumstances of each case will determine which of these
factors are
relevant.
It is now trite that
condonation cannot be had for the mere asking. A party seeking
condonation must make out a case entitling it
to the court’s
indulgence. It must show sufficient cause. This requires a party to
give a full explanation for the non-compliance
with the rules or
court’s directions. Of great significance, the
explanation must be reasonable enough to excuse the
default.
The interests of justice
must be determined with reference to all relevant factors. However,
some of the factors may justifiably
be left out of consideration in
certain circumstances. For example,
where the delay is
unacceptably excessive and there is no explanation for the delay,
there may be no need to consider the prospects
of success. If the
period of delay is short and there is an unsatisfactory explanation
but there are reasonable prospects of success,
condonation should be
granted. However, despite the presence of reasonable prospects of
success, condonation may be refused where
the delay is excessive, the
explanation is non-existent and granting condonation would prejudice
the other party
. As a general proposition the various factors are
not individually decisive but should all be taken into account to
arrive at a
conclusion as to what is in the interests of justice.’
[37]
All factors should therefore be taken into account when assessing
whether it is in the interest
of justice to grant or refuse
condonation.’
[3]
(Emphasis
added)
[11]
It
is also a well-accepted principle that in an application for
condonation, the applicant is seeking the indulgence of the court
and
thus has to take the court into her confidence in providing an
explanation and that is done by ensuring that all the relevant
facts
and circumstances relating to the delay are disclosed to the courts.
In
South
African Post Office Ltd v Commission for Conciliation Mediation and
Arbitration and Others,
[4]
also
pertinently stated:
‘
[21]
As
stated earlier in cases of individual dismissal, time is of the
essence and a substantial delay even where the delay is explained
is
not itself sufficient to obtain condonation.
Another obstacle to overcome is the decisions of this Court, that
state that an applicant seeking condonation cannot rely
on the
negligence of its legal representatives as a reason for not complying
with the prescribed time periods. In
Waverly
Blankets
[5]
this
Court
went
on to say that even where an attorney’s neglect of his client’s
affairs may be inexcusable and “despite
the blamelessness
of the client” condonation could still be refused
.’
[6]
(
Emphasis
added)
[12]
Clearly,
the LAC emphasised the importance of timeous action when it comes to
disputes over individual dismissals and, as such,
condonation will
not readily be granted. Also, the delay resulting from the ineptness
of legal representatives or the internal
procedures of trade unions
may not constitute a compelling reason for the grant of condonation
even though the client or member
is not culpable.
[7]
These labour law specific factors and considerations are trite and
have since been sanctioned by the Constitutional Court in
Steenkamp.
[8]
[13]
Turning to
the matter at hand, a delay of 10 weeks is not inconsequential and
the explanation tendered is seriously inadequate.
[9]
The applicant attributes the delay to the lack of funds. In
Du
Plessis v Wits Health Consortium (Pty) Ltd,
[10]
this
Court, as per Molahlehi J, stated the following:
‘
[16]
It is clear … that a claim of lack of funds on its own cannot
constitute reasonable explanation
for the delay. In other words, when
pleading lack of funds as the cause of the delay, the applicant needs
to provide more than
a mere claim that the reason for the delay is
lack of funds. In this respect, the applicant has to take the Court
into his or her
confidence in seeking its indulgence by explaining
"when" not only that he or she finally raised funds to
conduct the
case but also how and when did he or she raise those
funds. The "when" aspects of the explanation is important
as it
provided the Courts with the information as to whether there
was any further delay after raising the funds and whether an
explanation
has been provided for such a delay’.
[14]
The applicant’s assertions in the founding affidavit
lack detail in relation to when she raised the funds and the cause of
further delays, if at all. In essence, the applicant failed to place
before the Court exceptional circumstances that would justify
granting condonation. Firstly, she was not open about the fact that
she was self-employed and had some form of income. Secondly,
she was
not upfront about when and from whom did she secure the funds.
Lastly, no explanation was proffered as to why her income
was not
sufficient to cover her outstanding legal bills.
[15]
Mr De Bruyn, the applicant’s attorney, summited that,
despite being an experienced labour lawyer and had already opined
that
the award was reviewable, sought counsel’s legal opinion
because he thought his opinion was not objective given the fact that
he represented the applicant during arbitration. I am not convinced
that it was a prudent move since his client was strapped for
cash.
Ultimately, it was Mr De Bruyn who attended to the drafting and
settling of the application and not counsel.
[16]
It is disquieting that despite a clear advice to the applicant
by Mr De Bruyn that the referral of her matter was subject to the
statutory time frame of six weeks and that no further steps would be
taken until the outstanding account is settled, she did not
make
means to refer the matter on her own. In my view, attorneys should
start advising clients to approach the Court on their own
in the
event that they have no funds to pay for the legal services.
To
the extent that the litigants have no necessary knowledge, this Court
has various
pro forma
court documents (such as affidavits, statement of case, notice of
motion, etc.) that are easy to complete or adapt. So far, they
have
been utilised by less sophisticated, unrepresented litigants with
great success.
[17]
Accordingly, in my view, the explanation for the delay is
patently unsatisfactory. Given the significant delay and the
unsatisfactory
explanation, there is no need to consider the
prospects of success. However, I deem it appropriate to do that for
completeness
sake.
Prosects of success
[18]
The applicant was employed by the former
Minister of Communications, Minister Faith Muthambi (Minister
Muthambi), as her Personal
Assistant with effect from 1 June 2014.
She was placed at salary level 13 and earning a total package of
R819 126.00 per annum
plus an allowance of R5 090.00 per
month. Her employment was linked to Minister Muthambi’s term of
office which was
for five years.
[19]
Before her employment with the third
respondent, she had worked for the University of Venda for 30 years
as a librarian. After leaving
the University of Venda, she became a
sales agent for a company called Capri Exclusive Homeware and also
had her own company that
was selling linen and homeware.
[20]
She was offered employment directly by
Minister Muthambi upon her appointment as the Minister of
Communications. Minister Muthambi
enquired from the applicant’s
husband as to what she was doing at that time. She then offered the
applicant employment as
her Private Secretary. Minister Muthambi
assured the applicant that her lack of qualification was not an issue
as she only need
someone who was reliable and prayerful. She was also
promised training to enable her to perform her duties.
[21]
The applicant was reporting to Mr Freddy
Mamuremi (Mr Mamuremi), the Chief of Staff in the office of Minister
Muthambi. She only
received a job description during September 2014.
In October 2014, her reporting lines changed as she had to report to
the newly
appointed Office Manager, Dr Mochadi. The scope of her work
changed henceforth. Also, on 19 November 2014, Ms Benedictor
Makhubela
(Ms Makhubela) was appointed and she effectively took over
her work.
[22]
On 20 November 2014, the applicant received
a letter from Mr Mamuremi where he proposed that the applicant be
relocated to a lower
position as she was not coping with her work.
She replied to that letter on 24 November 2014 recording her
displeasure regarding
the proposed demotion but was unequivocal that
she was prepared to move as long as her salary scale and notch were
protected. In
the response to the letter dated 26 November 2014, Mr
Mamuremi was resolute that her salary would be in line with the level
of
her responsibility in terms of the new position. He then indicated
that she would be placed to level eight as a Receptionist with
effect
from 1 December 2014.
[23]
On 9 December 2014, the applicant responded
by refuting the allegation that she was incompetent and that she had
misconducted herself.
In essence, she rejected the offer of demotion.
That very same evening, Minister Muthambi called the applicant’s
husband
informing him that the applicant refused an instruction to be
demoted from level 13 to level eight with a view to seek his
intervention
to convince the applicant to accept the demotion.
[24]
On 10 December 2014, the applicant arranged
a meeting with Mr Mamuremi to discuss the turn of events. Mr Mamuremi
then informed
her that Minister Muthambi instructed him to suspend
the applicant because she did not accept the demotion. During the
meeting,
Mr Mamuremi took a call from Minister Muthambi and the
applicant overheard the Minister saying to Mr Mamuremi: ‘
I
told you to suspend that woman’
.
Consequent to hearing what Minister Muthambi said, she concluded that
she had no option but to resign as she would not have been
able to
fight Minister Muthambi whom she perceived to be ‘irredeemably
prejudiced against her’.
[25]
She tendered her resignation letter wherein
she states:
‘
After
careful consideration of the letter date 26 November 2014, I have
decided to terminate my services with the Department of
Communications in the interest of the Department and my health.
I will therefore
terminate my services with the Department with effect from the 1
st
of January 2015.
I wish to thank the
Department of Communications for offering me a job since the 1
st
of June 2014. I have learnt a lot. I have come to a point where I
have realised that my contribution to the Ministry has reached
a
ceiling.
I hope my termination of
service will be gladly received by the Department.’
[26]
Upon receipt of the applicant’s
resignation letter, the third respondent advised her that in terms of
the third respondent’s
Employment Policy, she had seven days to
withdraw her resignation should she wish to do so, subject to the
said withdrawal being
accepted by the third respondent. She was also
advised that she had to complete the exit interview questionnaire.
[27]
On 19 December 2014, the applicant
submitted a letter titled: ‘Exit letter: Explanation of my
resignation…’ where
she stated for the first time that
she was constructively dismissed.
[28]
The arbitrator clearly and properly
conceived the enquiry and was on point in terms of the legal issue
and the applicable pertinent
dicta
of this Court and the Labour Appeal Court (LAC) referred to in the
award. It is well accepted that in order to succeed in a claim
of
constructive dismissal, the following
three
requirements that must be established:
‘
(1)
a termination of employment by the employee;
(2)
intolerability of continued employment; and
(3)
the intolerability was the fault of the employer.’
[11]
[29]
I
n
Asara
Wine Estate and Hotel (Pty) Ltd v Van Rooyen and Others,
[12]
the court referred with approval to the LAC judgment in
Jordaan
v CCMA
[13]
where
it is stated that:
‘…
constructive
dismissal is not for the asking. With an employment relationship,
considerable levels of irritation, frustration and
tension inevitably
occur over a long period. None of these problems suffice to justify
constructive dismissal. An employee, such
as appellant, must provide
evidence to justify that the relationship has indeed become so
intolerable that no reasonable option,
save for termination is
available to her.’
[30]
In the matter at hand,
similarly,
the applicant failed to establish that the employment relationship
had become so intolerable that there was no reasonable
option other
than her resignation. In fact, as correctly held by the commissioner,
the applicant was willing to accept a relocation
to a demotive
position save for the salary adjustment. The reason for her
resignation is basically that she overheard Minister
Muthambi telling
Mr Mamuremi to suspend her. Well, if the instruction to suspend the
applicant was effected, she could have availed
herself to the
internal grievance procedures of the third respondent. Better still,
she also had a recourse in terms of the unfair
labour practice
machinery of the LRA.
[31]
Strangely, despite the applicant’s insistence that her
resignation was not voluntary, she shunned the opportunity to
reconsider
her resignation offered by the third respondent and later
by Mr Konaite, the Labour Relations Officer, who had a discussion
with
her after receiving her exit interview letter. Mr Konaite
testified that he tried to dissuade the applicant from resigning
because
the issues she was raising in her exit interview letter were
very serious and had never been brought to the attention of Human
Resources (HR). He advised the applicant to consider following the
internal procedures by lodging a grievance.
[32]
Also, Mr Mantsha, the third respondent attorney of record,
submitted that the applicant’s claim of constructive dismissal
in untenable in the light of the tone of her resignation letter and
paragraph 7 of her exit interview letter where she clearly state
that:
‘
In
anyway, I really enjoyed working with a lot of people I have met
within the Department. I wish to thank the Minister for giving
me the
opportunity to serve in her office and I will be prepared to work in
this Department if I am given another opportunity.
I wish to thank
the Chief of Staff who according to me is a very capable man. For
these months I have learnt a lot from him. I
am in particular
impressed by the efficiency of the HR Department.’
[14]
[33]
It is clear from the contents of the above paragraph that Mr
Mamuremi could not have bullied the applicant out of her employment
as submitted by Mr De Bruyn. The applicant expressed her gratitude to
Mr Mamuremi for what he had taught her learned during her
employment
with the third respondent. I am not convinced that there was ill
feeling between the two. In fact, it was the applicant’s
evidence that she continued communicating with Mr Mamuremi up until
her last day of employment.
[34]
The
applicant also conceded during her cross-examination that she was
never pushed out of her office to sit on the passage. Instead,
she
was requested to perform the receptionist function. It was also her
evidence that even after tendering her resignation, she
still
travelled with Minister Muthambi and Mr Mamuremi. During that time
there was a discussion about giving her a position of
protocol
officer.
[15]
[35]
In my view, the
arbitrator’s finding
that the applicant failed to prove that she was constructively
dismissed is correct and accordingly unassailable.
[36]
By the same token, the review application
has no prospect of success.
Conclusion
[37]
In the circumstances,
the
application for condonation stands to be dismissed. In the light of
the dipositive nature of the finding on condonation, it
is
superfluous to deal with all the other issues that arose in this
matter.
Costs
[38]
Typically, this Court is slow in granting costs against the
individual litigants in keeping
with the dictates of law and
fairness. In this instance, I am not convinced that the conduct of
the applicant was unreasonable
so as to be to saddled with costs, let
alone on a punitive scale as submitted by Mr Mantsha.
[39]
In the circumstances, I make the following order:
Order
1.
The application for condonation is
dismissed.
2.
There is no order as to costs.
_________________
P Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr B De Bruyn of Deon de Bruyn Attorneys
For
the Respondent:
Mr LD Mantsha of Lungisa Mantsha Attorneys
[1]
2019 (7) BCLR 826
(CC); (2019) 40 ILJ 1731 (CC).
[2]
2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC).
[3]
The factors expounded in
Grootboom
clearly accords with the principles outlined in
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531
(A) at 532- E.
[4]
[2012]
1 BLLR 30
(LAC); (2011) 32 ILJ 2442 (LAC) at para 22.
[5]
[1999] 11 (BLLR) 1143 (LAC) at 1145 I-J; see also
NUM
v Council for Mineral Technology
[1999]
3 (BLLR) 209 (LAC) at para 21.
[6]
Supra
n 7 at para 21.
[7]
See:
National
Education, Health & Allied Workers Union and Others v
Vanderbijlpark Society for the Aged
[2011]
7 BLLR 690
(LC); (2011) 32 ILJ 1959 (LC) at para 9.
[8]
Supra
n 4 at para 41.
[9]
See the unreported matter in
Michael
Mkhize v CCMA and Others
Case no. D95/2011 [2013] ZALCD (13 June 2013), where the court
stated that a delay of 5 weeks to launch a review application
was
substantial and excessive.
[10]
[2013] JOL 30060
(LC) at para 36.
[11]
See:
Solid
Doors (Pty) Ltd v Commissioner Theron and Others
(2004) 25 ILJ 2337 (LAC)
;
Conti Print CC v Commission for Conciliation, Mediation and
Arbitration and Others
[2015] 9 BLLR 865
(LAC) Strategic Liquor
Services v Mvumbi NO and Others
[2009]
9 BLLR 847 (CC).
[12]
(2012) 33 ILJ 363 (LC) at para 32.
[13]
[2010] 12 BLLR 1235 (LAC) 1239 B-E.
[14]
See: Pleadings bundle page 51 at para 7.
[15]
Transcript page 455 lines 21 -25 and page 456 lines1 – 16.