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[2019] ZALCJHB 329
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National Education Health and Allied Workers Union obo Nemahugani and Others v Limpopo Legislature (JS657/18) [2019] ZALCJHB 329 (20 November 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, POLOKWANE
Not reportable
Case No: JS 657/18
In the matter between:
NATIONAL EDUCATION
HEALTH AND
ALLIED WORKERS UNION
obo RENDANI
NEMAHUNGANI & 4
OTHERS
Applicants
and
LIMPOPO LEGISLATURE
Respondent
Heard: 5 September 2019
Delivered:
20 November 2019
JUDGMENT
TLHOTLHALEMAJE,
J
[1]
With this application, the applicant (NEHAWU), acting on behalf its
members
(the individual applicants), seeks an order condoning the
late filing of their statement of claim.
[2]
In opposing the application, the respondent (the Limpopo Legislature)
raised preliminary points and challenged the authority of the
deponent to the founding affidavit to institute any proceedings on
behalf of NEHAWU. It further contends that the founding affidavit did
not comply with the formal requirements contemplated in the
Regulations pertaining to the administration of oaths and
affirmation.
[3]
In regards to these preliminary points, the founding affidavit is
deposed
to by Rendani Nemahungani, one of the individual applicants,
whose authority to depose to that affidavit is challenged. The
respondent’s
further contention is that the other individual
applicants are not cited as parties to these proceedings, and that
they had merely
annexed their confirmatory affidavits to the founding
affidavit. It was further pointed out that Nemahungani did not aver
to be
acting on behalf of the other individual applicants.
[4]
At the hearing of this application, it was submitted on behalf of the
applicants that only three of the individual applicants were before
the Court instead of four as initially cited. It was contended
that
the incorrect citation of the number of individual applicants was a
mere error which was not material. I agree that such an
error is not
material, even though it would have been proper for the applicants to
have sought an amendment to the pleadings.
[5]
The second
preliminary point is however more serious. The founding affidavit in
support of the application for condonation is clearly
defective. This
is so in that even though someone purporting to be a Commissioner of
Oaths signed the affidavit, this was not in
compliance with
Regulation 4 of the Regulations,
[1]
as the names, address and designation of the purported Commissioner
of Oaths are not clearly set out in the document, and further
since
there was no evidence that the Commissioner of Oaths was authorised
to hold office in that capacity.
[6]
Despite this glaring defect having been pointed out in the answering
affidavit,
no attempts were made by the applicants to rectify same,
as no replying affidavit was served. It is appreciated as argued on
behalf
of the applicants that central to the enquiry as to whether an
affidavit was properly before a court is whether it can be said that
it substantially complied with the Regulations. In this case however,
in the absence of compliance with the core requirements specified
in
Regulation 4, it is not far-fetched to conclude that the ‘affidavit’
before the Court could have been signed by
any person purporting to
be a Commissioner of Oaths. I am therefore in agreement with the
submissions made on behalf of the respondent
that clearly there is no
proper affidavit before the Court, and that the matter ought to be
dismissed on that ground. For these
reasons, I do not deem it
necessary to deal with the respondent’s contentions in regards
to Nemahungani’s authority
to bring this application on behalf
of the other individuals, or the dispute surrounding the status of
their confirmatory affidavits.
[7]
It is however my view that even if the preliminary point as
determined
above is dispositive of the matter, the application in any
event ought to be dismissed on its merits, which for the sake of
completeness,
I propose to deal with.
[8]
The individual applicants are all female employees employed by the
respondent
in different capacities. The respondent has a policy in
terms of which employees are paid an annual performance bonus upon a
satisfactory
performance assessment. It is common cause that the
individual applicants were paid
pro rata
in respect of their
performance bonus for the financial year 2015/2016 instead of full
payment.
[9]
Flowing from
complaints that the individual
applicants had lodged, the respondent’s response
in a
letter dated 8 September 2016 was that the
pro rata
payment was made on the basis that they (individual applicants)
were on maternity leave during the relevant period of performance
assessment.
[10]
A dispute
was then referred to the Commission Conciliation Mediation and
Arbitration (CCMA) on 1 February 2017 wherein
the
individual applicants alleged that they had been unfairly
discriminated against on the grounds of their pregnancy, and in
direct contravention of the provisions of section 6 of the Employment
Equity Act (EEA).
[2]
They sought
relief in terms of the provisions of section 10 of the EEA. The
dispute was referred some six months out of time, and
the CCMA had
granted condonation in that regard.
[11]
After
several procedural matters were dealt with at the CCMA, a certificate
of non-resolution was issued on 6 July 2017.
The dispute
was then referred for arbitration. It came before Commissioner P
Shai, who had on 23 October 2017, issued
a jurisdictional
ruling to the effect that the CCMA lacked the requisite jurisdiction
to arbitrate the matter. The Commissioner’s
reasoning was that
the individual applicants’ remuneration exceeded the minimum
threshold prescribed in terms of the provisions
of the Basic
Conditions of Employment Act (BCEA)
[3]
by
the Minister of Labour
.
[4]
[12]
The respondent correctly pointed out that the individual applicants
were throughout this
dispute, represented by NEHAWU, which ought to
have known that the option to arbitrate such disputes was only open
to employees
earning below the threshold. In my view such elementary
errors of law on the part of NEHAWU related to the provisions of the
EEA,
are indeed inexcusable. The fact that a certificate of outcome
indicated that the matter should be referred for arbitration was
not
an excuse for NEHAWU to fail to appreciate the peremptory provisions
of section 10(6)(aA) of the EEA.
[13]
The statement of claim was ultimately served on 31 August 2018.
A copy of the
statement of claim delivered to the Court is stamped
and dated 16 July 2019. One can only assume that a copy
served on
the respondent was not delivered on the same date. Be that
as it may, the statement of claim was accompanied by an
application
for condonation. The respondent contends that the statement of claim
was 7 months and some seven days out of time when
regard is had to
the date when the certificate of outcome was issued, being
6 July 2017. The applicants on the other
hand contend that
the delay is only about 108 days, taking into account the date upon
which the jurisdictional ruling was issued.
[14]
In
NEHAWU
obo Mofokeng & Others v Charlotte Theron Children’s’
Home
[5]
,
the Labour Appeal Court held that the provisions of subsection 10(6)
and 10(7) must be read together when determining the prescribed
time
periods applicable for the referral of a dispute contemplated in
Chapter II of the EEA.
[6]
The
provisions of subsection 10(7) stipulate that the relevant provisions
in part C and D of the Labour Relations Act (LRA) shall
find
application in disputes referred to in Chapter II of the EEA. The
Labour Appeal Court further held that a
reading
of the provisions of subsection 10(7) of the EEA was such that the 90
days’ time period contemplated in section 136(1)(b)
[7]
of the LRA was equally applicable (within context) to proceedings
contemplated in subsection 10(6) of the EEA, and further that
the 90
days’ time period contemplated within the provisions of section
136(1)(b) of the LRA (within context) must be computed
from the date
the dispute was declared as unresolved.
Any
doubt as to when the 90 days period is triggered was put to rest in
F
& J Electrical CC v MEWUSA obo E Mashatola and Other
[8]
,
where the Constitutional Court held that;
“
The
union contended that the referral of the dispute to the Labour Court
was within the prescribed period. It seems that this contention
was
based on a misconception that the 90-day period was to be reckoned
from the date of the ruling of the CCMA. That is not so.
In this
case, the period had to be reckoned from the date when the
certificate was issued.”
[15]
In line with the above principles, the delay in
referring this matter for adjudication is about ten months, upon a
proper calculation
of the 90-day period from 6 July 2017
when the certificate of outcome was issued, and 31 August 2018
when the
statement was ultimately filed.
[16]
It
is trite that in determining whether
good
cause
has been shown, the Court must exercise its discretion judicially.
The Court must further take into account the facts and circumstances
of each case, in determining whether the interests of justice permit
that condonation be granted
[9]
.
In this regard, factors to be considered in determining whether the
interests of justice dictate that condonation be granted include,
but
are not limited to the degree of lateness, the explanation thereof,
the prospects of success, the prejudice to the parties,
and the
importance of the case
[10]
.
[17]
Insofar as the degree of the delay is concerned in
this case, there can be no doubt that a delay of about ten months is
excessive
in the extreme. This creates an even more onerous burden on
NEHAWU and the individual applicants, to give a full and detailed
account
for each period of the delay.
[18]
In attempting to proffer an explanation,
Nemahungani on behalf of the individual applicants
stated
that;
18.1
Immediately
after the jurisdiction ruling was issued on
23 October 2017, NEHAWU had instructed a firm of attorneys
for the purposes
of filing a statement of claim. On 14 February 2018,
arrangements were made for a consultations to be held between NEHAWU,
the individual applicants and the appointed attorneys on
19 February 2018;
18.2
On 12 March 2018 and subsequent to the first consultation
meeting, the attorneys wrote
to NEHAWU indicating that the documents
which ought to have been received by 23 February 2018, were
only received on
1 March 2018 and as such, the attorneys
required further instructions on the matter;
18.3
On 14 June 2018, the individual applicants wrote to NEHAWU
registering their dissatisfaction
with the services of the appointed
attorneys and the lack of progress in the matter. They further sought
to have the attorneys
substituted on basis that they had failed to
schedule further consultation meetings, and also had failed to file
papers with this
Court. The statement of claim was subsequently filed
on 16 July 2018 after the appointment of the applicants’
current
attorneys of record.
[19]
The explanation as proffered by
Nemahungani is
clearly lacking in detail and is thin on substance. Even if the
applicants were under the misapprehension that the
90 days was
triggered from the date of the jurisdictional ruling, once they had
appointed attorneys to prosecute the claim on their
behalf, it does
not assist their case for them to complain about the attorneys’
incompetence or lack of diligence, when it
is not clear as to what
steps they had taken to ensure that the matter was timeously
prosecuted. The individual applicants do not
explain what they did
between February 2018 after the attorneys were appointed and
June 2018 when they realised that
they were not satisfied with
their service, other than to refer to consultations they had with the
attorneys in February and March 2018.
[20]
The individual applicants further appear to
have washed their hands off the matter and sought to blame
NEHAWU and the erstwhile
attorneys for the delay. Furthermore, it is
not correct that the erstwhile attorneys were appointed
immediately
after the jurisdictional ruling was issued. The
ruling was issued on 23 October 2017, and on the
applicants’
own version, the erstwhile attorneys were consulted
at most, in February 2018, some four months since the ruling was
issued.
Surely that period cannot be equated to ‘
immediately’.
[21]
As correctly pointed out by the respondent, the applicants made no
attempt to explain the
period after 14 June 2018 when the
mandate of the erstwhile attorneys was purportedly terminated.
Furthermore, there
is no explanation on what steps were taken
thereafter and why it took a further full month to eventually file
their statement of
claim on 16 July 2018.
On
the whole, the delay between October 2017 and February 2018
remains unexplained. Equally so, the delay after the applicants
had
appointed their erstwhile attorneys whose mandate was allegedly
terminated, and again after the appointment of new attorneys,
is not
fully explained. In effect, any explanation in that regard is wholly
inadequate and unsatisfactory.
[22]
It is
further trite that in an instance such as this, where the delay is
excessive in the extreme, and the explanation is found
to be
inadequate, the Court may decline to consider the other relevant
factors such as the prospects of success and prejudice.
[11]
Even if the applicants can be given the benefit of the doubt and it
is accepted that any matter involving alleged unfair discrimination
is important, this however is not the end of their problems, as they
still need to demonstrate that they have prospects of
success
in the main claim. This is hardly so in this case as demonstrated
below.
[23]
The
individual applicant’s claim is premised on the provisions of
section 6 of the EEA, being discrimination on the basis
of pregnancy.
The inquiry on whether there is unfair discrimination involves three
stages,
viz
whether
there is differentiation which amounts to discrimination; and if the
discrimination is established, whether the discrimination
is
unfair.
[12]
Once
discrimination is shown, the employer must in terms of the provisions
of section 11(1) of the EEA prove on balance of probabilities
that
such discrimination did not take place; or that the discrimination is
rational, or not unfair and/or is justifiable.
[24]
Central to
the determination of the individual applicants’ claim is
whether the conduct of paying them
pro
rata
performance bonuses on account of their absence from service after
taking maternity leave amounts to discrimination on the basis
of
their pregnancy. It was common cause that other than the
pro
rata
payments made based on the 8 months that they had rendered their
services, the individual applicants were also paid four months’
salary whilst on maternity leave. They however contended that the
conduct in question amounted to discrimination on the grounds
that
clause 5.4
[13]
of the Limpopo
Legislature Performance Management Policy and Procedure 2010, did not
provide for their exclusion from the payment
of a full performance
bonus in circumstances where they were on maternity leave during
parts of the period of assessment. They
further relied on the
memorandum issued by the Manager in the Office of the Secretary dated
8 June 2016, for the assertion
that female employees like
them remained entitled to the payment of a full performance bonus
notwithstanding their absence from
work for an extended period.
[25]
A substantial part of the individual applicants’ main claim
rests on their interpretation
of clause 5.4 of the policy. Clause 1
of the policy defines ‘appraisal’ as an annual formal
assessment of an employee
based on agreed set performance standards.
A ‘formal assessment’ is further defined as a formal
meeting between an
employee and a supervisor for the purpose of
discussing the employee’s rating and areas that require
improvement in order
to determine the employee’s overall
performance. The policy further at clause 1 defines a ‘
pro
rata
payment’ as a payment awarded to an employee based on
a number of months that
an employee
has worked in a post [in a
particular financial year].
[26]
The applicants’ contentions are without merit for the reasons
correctly pointed out
on behalf of the respondent. In this regard, I
am in agreement that payment of a performance bonus is not intended
to reward employees
who cannot demonstrate that they had performed
during the period of assessment. In plain terms, there can be no
entitlement to
a performance bonus in circumstances where an employee
did not render services or had their performance assessed in the
particular
year financial. The contention that there should be a
blanket payment of the performance bonus where the requirements for
such
a payment were not met cannot be sustainable, as it would defeat
the purpose of the policy, which is to reward employees who had
rendered their services to a satisfactory level, and to
remedy
any unsatisfactory performance that might be identified during the
formal assessment or appraisal
.
[27]
On a plain reading of clause 5 and the definition clauses, the policy
excludes the payment
of rewards to employees who may have completed
their “formal”
assessment
outside the timeframes
set-down in terms of the policy. The policy in clause 5.2 provides
that performance reviews must be done
on quarterly basis and further
that annual appraisals must be completed at the end of each financial
year. The general scheme of
clause 5 of the policy is therefore that
a quarterly and annual assessment or appraisal of an employee’s
performance must
be completed within certain specific timeframes in
each financial year. There is nothing in clause 5.4 and in the policy
in general
that supports the version of the applicants that they
remain entitled to a performance reward notwithstanding the fact that
they
were absent from duty during the period of performance
assessment.
[28]
As it was correctly pointed out on behalf of the respondent, the
applicants’ claim
has not got out of the starting blocks. There
is no basis, even
prima facie
, for any conclusion to be
reached that the individual applicants would be able to demonstrate
that the conduct complained of amounts
to any discrimination, let
alone an unfair one. The respondent has on the other hand,
demonstrated that there was a rational basis
for excluding the
individual applicants from the full payment taking into account the
provisions of the policy. In the end, the
applicants have not shown
that their claim enjoys any prospects of success should it proceed to
trial.
[29]
In circumstances where the delay in filing of the statement of claim
was excessive
in the extreme, and where the explanation
tendered for that delay was wholly unsatisfactory and inadequate, and
further where the
applicants’ claim have no prospects of
success, it can clearly not be in the interests of justice to grant
condonation. The
prejudice to the respondent should condonation be
granted is clear, as it would be required to defend a claim which has
no merit,
and which claim the applicants leisurely prosecuted.
[30]
The respondent sought a costs order against the applicants should the
application fail.
This Court enjoys a wide discretion under the
provisions of section 162 of the LRA in regards to an award of costs,
having taken
into account the requirements of law and fairness. It is
my view that this case, which goes back to 2016 ought not to have
come
this far, given the nonchalant manner with which it was
prosecuted from the beginning, and its glaring lack of merit. In the
circumstances,
and given the reasons in this judgment as to why the
application should fail, I see no reason in law and fairness, why
NEHAWU in
particular should not be burdened with its costs.
[31]
Accordingly, the following order is made;
Order:
1. The application
to condone the late filing of the Applicants’ statement of
claim is dismissed.
2. NEHAWU is
ordered to pay the costs of this application.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants: S.S Makoasha Instructed by S. Rangoanasha
Incorporated
For
the Respondent: M.H Marcus instructed by Lebea & Associates
4
(1) Below the deponent’s
signature or mark the commissioner of oaths shall certify that
the
deponent has acknowledged that he knows and understands the contents
of the declaration and he shall state the manner, place
and date of
taking the declaration.
(2) The
commissioner of oaths shall-
(
a)
sign the
declaration and print his full name and business address below his
signature; and
(b)
state his designation and the area for which he holds his
appointment
or the office held by him if he holds his appointment
ex
officio
.
[2]
Act 55 of 1998 (as amended)
[3]
Act 75 of 1997 (as amended). Section 10(6) (aA) provides:
‘
(6)
If the dispute remains unresolved after conciliation-
(a)
any party to the dispute may refer it to the Labour Court for
adjudication;
(aA)
an employee may refer the dispute to the CCMA for arbitration if-
(i)
the employee alleges unfair discrimination on the grounds
of sexual
harassment; or
(ii)
in any other case, that employee earns less than the amount stated
in the determination made by the Minister in terms of section 6 (3)
of the Basic Conditions of Employment Act; or
(b)
any party to the dispute may refer it to the CCMA for arbitration if
all the parties to the dispute consent to
arbitration of the
dispute.
[4]
Section 6(3) of the BCEA provides:
The
Minister must, on the advice of the Commission, make a determination
that excludes the application of this Chapter or any
provision of it
to any category of employees earning in excess of an amount stated
in that determination.
[5]
[2004] ZALAC 9; [2004] 10 BLLR 979 (LAC)
[6]
Ibid
at para 19 where it was held:
…
Reading
section 10(6) and 10(7) of the Equity Act together, it would appear
that the Equity Act must be read together with the
applicable
provisions of the Act. By reference to the words ‘with the
changes required by the context’ in section
10(7) the
ninety-day time period as provided for in section 136(1) of the Act,
which itself appears in part C of Chapter VII
of the Act, becomes
applicable to the dispute. In other words, although the present
dispute involves adjudication after an unresolved
conciliation and
section 136(1) refers expressly to arbitration, the savings
provision in section 10(7) of the Equity Act then
becomes operative;
hence the ninety-day requirement is of equal application in the new
context to the adjudication as envisaged
in section 10(6) of the
Equity Act.
[7]
Section 136 of the LRA.
Appointment
of commissioner to resolve dispute through arbitration
(1)
If this Act requires a dispute to be resolved through arbitration,
the
commission must appoint a commissioner to arbitrate that
dispute, if -
(a)
a commissioner has issued a certificate stating that the dispute
remains unresolved; and
(b)
within 90 days after the date on which that certificate was issued,
any party to the dispute has requested that the dispute be resolved
through arbitration. However, the Commission, on
good cause
shown, may condone a party's non-observance of that timeframe and
allow a request for arbitration filed by the party after the
expiry
of the 90-day period.
[8]
[2015] ZACC 3
;
2015 (4) BCLR 377
(CC); (2015) 36 ILJ 1189 (CC);
[2015] 5 BLLR 453
(CC) at para 30
[9]
See
Steenkamp
and Others v Edcon Limited
2019 (7) BCLR 826
(CC); (2019) 40 ILJ 1731 (CC);
[2019] 11 BLLR 1189
(CC),
where
it was held that
“
[36]
Granting condonation must be in the interests of justice. This Court
in
Grootboom
set
out the factors that must be considered in determining whether or
not it is in the interests of justice to grant condonation:
“
[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
interests of justice to grant or refuse condonation.”
[10]
See
Melane
v Santam Insurance Co. Ltd
1962 (4) SA 531 (A)
[11]
NUM
v Council for Mineral Technology
[1999] 3 BLLR 209
(LAC) at 211G-H: where in was held:
There
is a further principle which is applied and that is that 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 delay, an application
for
condonation should be refused
[12]
See
Mbana
v Shepstone and Wylie
2015
(6) BCLR 693
(CC); (2015) 36 ILJ 1805 (CC)
[13]
5.
Performance
cycle, assessment and Appraisal
…
5.4
Quarterly performance assessments and annual performance appraisals
not conducted within prescribed time frames shall not be considered,
except in the event of unforeseen circumstances or employee
taking
leave, and alternative arrangement in writing for assessment made
are with Human Resource before the due date of performance
assessments.