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[2019] ZALCPE 17
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Fikile and Others v Minister of Roads and Transport and Others (PR110/14) [2019] ZALCPE 17 (23 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not reportable
Case
no: PR 110/14
In
the matter between:
JE
FIKILE
AND
16 OTHERS
and
MINISTER
OF ROADS AND TRANSPORT
MEC
FOR THE DEPT OF ROADS AND
TRANSPORT,
EASTERN CAPE
GPSSBC
PI
DHLODHLO
N.O
Applicants
First
Respondent
Second
Respondent
Third
Respondent
Fourth
Respondent
Heard:
22 August 2019
Judgment:
23 August 2019
JUDGMENT
VAN
NIEKERK J
[1]
The applicants seek to review and set aside an arbitration award
issued by the fourth
respondent (the arbitrator). In his award,
issued on 23 September 2013, almost 6 years ago, the arbitrator held
that the third
respondent (the bargaining council) had no
jurisdiction to arbitrate a dispute between the parties. The
applicants had referred
an unfair labour practice dispute to the
bargaining council concerning what was alleged to be an unfair
promotion.
[2]
The review application was filed only on 30 July 2014 in
circumstances where the notice
of motion was dated 5 May 2014, the
founding affidavit signed on 9 May 2014 and the application served on
the state attorney on
6 June 2014.
[3]
The applicants’ representative states that he received the
award on 10 November 2014.
The review application ought therefore to
have been filed on or about 22 December 2014. It was filed some seven
months late. On
the same date that the review application was filed,
30 July 2014, the applicants filed a discrete application seeking
condonation
for the late filing of the review. The first and second
respondents, who oppose the review, have not filed an answering
affidavit
in the condonation application but they oppose the granting
of condonation.
[4]
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.
[5]
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.
[6]
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.
[7]
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.
[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 an attorneys 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.
[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]
As I have indicated, in so far as the degree of lateness is
concerned, the application for review was
filed some seven months
late. By any account, this is an inordinate delay. The essence of the
explanation for the delay in filing
the review application is one in
which the applicant’s erstwhile attorney records that she was
on sick leave from 12 November
2013 to 15 November 2013 and
consequently incapacitated. She eventually consulted with the
applicants on 20 November 2013, and
further consultations became
necessary. The logistical arrangements for these meetings was made
more difficult by the applicants
having to travel a long distance to
meet with their attorney. The attorney was instructed to brief
counsel which she did in early
December 2013. Counsel sought
additional documentation which was acquired in mid-December 2013.
Little of any moment occurred until
mid-January 2014 on account of
the holiday season, and it was only towards the end of January that
counsel was instructed to prepare
the necessary review application.
The attorney states that the possibility of avoiding any delays was
expressly discussed. Be that
as it may, a consultation with counsel
was arranged only on 3 March 2014 and discussion centred around the
prospect of briefing
a more senior counsel to settle the draft papers
that were in the process of being finalised. On 26 March 2014, senior
counsel
furnished a memorandum of advice and meetings were held
between the senior and junior counsel to further discuss the matter.
On
31 March 2014, the applicant’s attorney received a copy of
the draft papers for the attention and consideration. It was decided
that amendments to the papers were necessary and these were made
during the course of early May. This is the extent of the applicants’
explanation.
[11]
The explanation is not satisfactory. First, the explanation extends
only to early May 2014 and
thus fails to cover the full period of the
delay. There is no explanation for the significant period of delay
between early May
2014 and 30 July 2014 when the papers were
eventually filed. The delay here is one of some three months. The
applicants’
legal representatives must have been aware of the
six-week time limit that applies to review applications. Indeed, they
must have
been aware since late December 2013 that the application
was already out of time. That notwithstanding, there appears to be no
sense of urgency demonstrated by the conduct of the applicant’s
representatives, who clearly prepared the application for
review as
if the applicable time limit did not exist.
[12]
While it may be argued that the significant gaps in the explanation
for the delay that has been
proffered should be overlooked since it
was not the fault of any of the individual applicants, I must
necessarily have regard to
the fact that there is nothing on record
to suggest that any of the applicants made any regular enquiries as
to progress in the
matter, or took any steps to expedite the filing
of the review or to ensure that their instructions were being
executed.
[13]
In the absence of a satisfactory explanation for an excessive delay,
the application for condonation
stands to be refused. In accordance
with the principles elaborated above, the applicant’s prospects
of success in the main
application are immaterial.
[14]
What counts against the applicants in the present instance more than
any other factor is the
prejudice that would be caused to the first
and second respondents should condonation be granted and the review
application proceed.
This matter has its roots in events that
occurred in 1996. Indeed, in their referral to the bargaining
council, the applicants
claim back pay to July 1996, more than 23
years ago. The dispute was referred to arbitration only in April
2013. The ruling that
the applicant seeks to review, as I have
indicated, is dated 23 September 2013. If the review were to succeed
and the matter were
to be remitted to the bargaining council for
rehearing, some six years would have elapsed without any substantive
progress in the
resolution of the dispute. To grant condonation would
fly directly in the face of the stated statutory purpose of
expeditious dispute
resolution. The interests of justice require
finality.
[15]
Finally, for the purposes of s162, the interests of the law and
fairness are best satisfied by
there being no order as to costs.
For
the above reasons, 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
OF THE LABOUR COURT
APPEARANCE
For the Applicants: Adv J
Grogan, instructed by Matthew Moodley Attorney
For the first and second
respondents: Adv I Lamprechts, instructed by the state attorney.