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[2019] ZALCCT 26
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South African Catering Commercial Workers Union and Another v Checkers (Pty) Ltd (C258/2019) [2019] ZALCCT 26 (19 September 2019)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not reportable
Case no: C258/2019
In the matter between:
SOUTH AFRICAN CATERING
COMMERCIAL
WORKERS UNION
First
Applicant
TABISA
NOMATSHAKA Second
Applicant
and
CHECKERS
(PTY) LTD
Respondent
Heard:
21 August 2019
Delivered:
19 September 2019
Summary:
Application for leave to file a further affidavit – no
exceptional or special circumstances
that warrant the filing of a further affidavit.
Condonation
application – time is of the essence in individual dismissal
disputes – extensive delay ensuing from
the trade union’s
inability to the pay attorneys’ legal fees is inexcusable –
condonation is refused without
considering prospects of success.
JUDGMENT
NKUTHA-NKONTWANA,
J
Introduction
[1]
The applicants seek an order condoning the
late filing of the statement of case challenging the fairness of the
dismissal of the
second applicant, Ms Tabisa
Nomatshaka
(Ms Nomatshaka
), a member of the first
applicant (SACCAWU).
[2]
Ms Nomatshaka
was
employed by the respondent (Checkers) as a front end controller.
Amongst her responsibilities was overseeing the cashiers and
was
required,
inter alia,
to ensure that cash in the tills is secured. On 5 and 6 February
2018, SACCAWU embarked on a protected strike nationally. According
to
the applicants,
Ms Nomatshaka
was
requested by the cashiers to close their tills in order to enable
them to join the strike picket which was due to take place
at 13h00.
Indeed, she acceded to the request and closed the tills in order to
secure the cash in the tills. She also joined the
strike picket.
[3]
The respondent charged
Ms
Nomatshaka
for closing the tills without
permission as, in doing so, it was alleged that she had sabotaged the
business of Checkers. She was
found guilty and accordingly dismissed.
The applicants referred the dispute of unfair dismissal to the
Commission for Conciliation
Mediation and Arbitration (CCMA). Upon
being certified as unresolved at conciliation, the matter was set
down for arbitration at
the instance of the applicants.
[4]
Commissioner
Gail McEwan (commissioner) was appointed to arbitrate the matter. The
arbitration proceedings sat on 6 June 2018. The
applicant briefly
testified and the respondent’s representative, Mr Malganyana
testified under oath in support of the respondent’s
case.
Thereafter, the commissioner,
mero
motu,
raised the issue of automatically unfair dismissal in terms of
section 187(1)(a) of the Labour Relations Act
[1]
(LRA).
[5]
The
commissioner issued the jurisdictional ruling dated 13 June 2018
wherein she found that CCMA lacked jurisdiction to arbitrate
the
dispute and that the matter should proceed to this Court for
adjudication. In paragraph 5 of the ruling, she records the reason
for her finding as follows:
[2]
‘
Section
67 of the LRA states: An employer may not dismiss an employee for
participating in a protected strike or for any conduct
in
contemplation or furtherance of a
protected strike
(my emphasis). There
was no other reason for Nomatshaka to close the tills of nine
cashiers other than them requesting her to do
this for them to be
able to join a strike action. The action of Nomatshaka can only be
seen as her furtherance of the strike.’
Application to have
the respondent’s further affidavit admitted
[6]
The respondent staged an impassioned
opposition to the granting of condonation. It also seeks an
indulgence to have its further
affidavit admitted as well as the
transcribed record of the arbitration proceedings. Mr
Jorge,
who appeared for the
respondent, submitted
that the applicants sought to mislead the Court when they alleged in
their replying affidavit that it was
the respondent that had raised
the jurisdictional point during the arbitration proceedings. Also, it
is alleged that the applicants
raised a new issue in their replying
affidavit that the respondent could have unlocked the tills if it
wanted to.
[7]
The applicants objected to the admission of
the respondent’s further affidavit. Ms Ganditze, the
applicants’ attorney,
submitted that there was no basis for the
filing of the further affidavit.
[8]
Indeed,
the Court does have discretion to permit the filing of further
affidavits as per Rule 6(5)(e) of the Rules of the Court.
However, a
case must be made that there are exceptional or special circumstances
that dictate a filling of further affidavits contrary
to the general
rule that only three sets of affidavits are allowed in motion
proceedings.
[3]
[9]
In
this instance, there is no need to traverse the merits in detail as
this is an interlocutory application and the pertinent facts
are
mostly common cause. In any event, the
Plascon-Evans
rule
[4]
would apply to the
extent that there are material disputes of fact.
[10]
Accordingly,
I am not convinced that there are exceptional or special
circumstances that warrant the filing of a further affidavit
by the
respondent. As such, the request by the respondent to file a further
affidavit is not granted. In effect,
the
respondent’s further affidavit and the record of the
arbitration proceedings fall to be regarded as
pro
non scripto
.
[5]
[11]
I now turn to the condonation application.
Degree of lateness and
explanation
[12]
SACCAWU applied for the case number on 24
July 2018 with the intention to review the jurisdiction ruling.
However, no application
was filed but SACCAWU sought a legal opinion
on a process to be undertaken. The applicants’ attorneys of
record opined that
the matter be pursued as directed by the
commissioner in her jurisdictional ruling.
[13]
On 13 August 2018, a request was made to
the SACCAWU Head Office for the authorisation to brief the attorneys
of record to draft
the statement of case. The reason according to the
union official, Mr Clin Tyhalidikazi (Mr Tyhalidikazi), the deponent
to the
applicants’ founding affidavit, was that he does not
have the necessary expertise to draft a statement of case. The
authorisation
was granted the next day and on 15 August 2018, the
applicants’ attorneys of record were according briefed.
[14]
However, the applicants’ attorneys of
record did not attend to the clients’ instructions because the
SACCAWU accounts
on the files in other matters with the firm had
fallen in arears. SACCAWU was duly informed that no further work will
be attended
to unless the accounts were settled.
[15]
SACCAWU only managed to settle the
outstanding fees sometime in February 2019. The attorney allocated to
deal with the matter was
on annual leave and returned on 25 February
2019. When the attorney returned, he had to deal with all SACCAWU
files on numerous
matters that were already out of time. That
happened between end February 2019 and early April 2019.
[16]
The consultation with the SACCAWU official
and
Ms Nomatshaka
took
place on 15 April 2019 and the statement of case was filed on 16
April 2019. The degree of lateness is nine months.
[17]
The applicants conceded that nine months’
delay is extensive and the explanation is not the best but they
submitted that it
is nonetheless sensible.
[18]
On the other hand, the respondent submitted
that given the excessive protraction, the applicants’
explanation for the delay
had to be compelling. However, the
explanation proffered in the applicants’ founding affidavit is
lacking in particularity
and is deficient. When it exposed this fact
in the respondent’s answering affidavit, the applicants went
into great length
addressing the deficiencies in their replying
affidavit. As such, it was submitted on behalf of the respondent that
the applicants
must stand and fall by the case made in the founding
affidavit, so it was further submitted.
Legal principles and
application
[19]
In
Steenkamp
and Others v Edcon Limited,
[6]
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.
[7]
It was stated:
‘
[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 interest
of justice to grant or refuse
condonation.’
[8]
(Emphasis
added)
[20]
Given
the concession that the period of the delay is substantial and that
the explanation is not best, the applicants are basically
asking for
the indulgence on the basis of the prospects of success. Ms Ganditze
submitted that even though it is
trite
that where the delay is substantial and the explanation is
unreasonable and unacceptable, the Court may refuse condonation
without considering the other factors, that principle is not in any
way inflexible.
To
fortify this submission, I was duly referred to the Labour Appeal
Court (LAC) decision in
South
African Post Office Ltd v Commission for Conciliation Mediation and
Arbitration and Others.
[9]
However, the
Post
Office
decision is distinguishable as the appellant’s explanation in
that case was found to be acceptable. Notwithstanding, the
LAC 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
[10]
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
.’
[11]
(
Emphasis
added)
[21]
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
may not be culpable.
[12]
These labour law specific factors and considerations are trite and
have since been sanction by the Constitutional Court in
Steenkamp.
[13]
[22]
Mr Jorge correctly submitted that SACCAWU
is one of the established trade unions and, as such, ought to have
been
well aware of the need to act timeously in the interest
of its member. If indeed SACCAWU
was cash
strapped, it is mind boggling that its head office sanctioned the
briefing of attorneys in this matter. Worse still, even
when informed
that the matter would not be attended to until outstanding accounts
are settled, SACCAWU did not take any steps to
act with the necessary
speed in prosecuting the matter despite a concession that they had,
at least, already received a legal opinion
on the course of action to
pursue.
[23]
The assertion that Mr Tyhalidikazi lacked
the necessary skill to deal with the issues that are raised in this
matter, hence SACCAWU
briefed the attorneys, is untenable. Firstly,
SACCAWU is a big organisation and it is not clear as to why
assistance was not sought
elsewhere within the organisation.
Secondly, what was expected from Mr Tyhalidikazi was to draft a mere
statement of case. To the
extent that he had no necessary knowledge,
this Court has various
pro forma
court documents (like affidavit, 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. It does not take the wisdom of Solomon to attend
to that.
[24]
Therefore, it is not uncalled-for to expect
the
trade union
officials, particularly, of
a trade union of SACCAWU’s calibre, to assiduously
handle
disputes of its members as they
are, in a sense,
mainly tasked with that.
Conclusion
[25]
In
the circumstances,
I
do not have to consider the prospects of success, given the extensive
degree of lateness and the explanation that is unreasonable
and
unsatisfactory.
[14]
Therefore,
the application for condonation stands to be dismissed.
Costs
[26]
It is now an accepted principle that costs do not follow the result
in this Court especially
in instances where there is a persisting
collective bargaining relationship as typified in the instance.
[27]
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:
Applicant:
Ms
T Ganditze of Cheadle Thomson & Haysom Incorporated
Respondent:
Mr J Jorge of Cliffe Dekker Hofmeyr Incorporated
[1]
Act 66 of 1995 as amended.
[2]
See: Jurisdictional ruling at page 52.
[3]
See:
Zarug
v Parvathine
1962(2) SA 872 (D) at 873 H to 874 E.
[4]
See:
Plascon-Evans
Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd
[1984] 2 All SA 366 (A); 1984 (3) SA 623; 1984 (3) SA 620.
[5]
See:
Standard
Bank of SA Ltd v Sewpersadh and Another
2005 (4) SA 148
(C) at paras 12 to 13.
[6]
2019 (7) BCLR 826
(CC); (2019) 40 ILJ 1731 (CC)
[7]
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC) at para 20.
[8]
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.
[9]
[2012]
1 BLLR 30
(LAC); (2011) 32 ILJ 2442 (LAC) at para 22.
[10]
[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.
[11]
Supra
n 7 at para 21.
[12]
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.
[13]
Supra
n 4 at para 41.
[14]
See:
Collet
v Commission for Conciliation Mediation and Arbitration and Others
(2014) 35 ILJ (LAC);
2014 6 BLLR 523
(LAC) at para 38.