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[2020] ZALCJHB 11
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Matutu v Bargaining for the Meat and Trade (Gauteng) and Others (JR499/2017) [2020] ZALCJHB 11 (29 January 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR499/2017
In the matter between
:
LINDELWA
CLEMENTINE MATUTU
Applicant
and
BARGAINING
COUNCIL FOR THE MEAT
AND
TRADE (GAUTENG)
First Respondent
COMMISSIONER
DAISY MANZANA N.O.
Second Respondent
PICK
‘N PAY RETAILERS (PTY) LTD
Third Respondent
Heard:
31
October 2019
Judgment:
29 January 2020
Summary:
Review application in terms of section
145 and 158(1)(g) of the LRA – Condonation application due to
late filing of review
application – Principles applicable to
condonation applications restated – Failure to provide
reasonable and acceptable
explanation for excessive delay is fatal –
Prospects of success also considered and found to be lacking –
Condonation
application refused and consequently review application
dismissed.
JUDGMENT
MGAGA,
AJ
Introduction
[1]
This is a review application brought in terms of section 145 and/or
158(1)(g) of the
Labour Relations Act
[1]
(LRA)
[2]
wherein the applicant
seeks an order to review and set aside the ruling made by the second
respondent on 19 February 2016 and to
refer the matter back to the
first respondent to be heard by a commissioner other than the second
respondent. The ruling made by
the second respondent (arbitrator)
reads as follows:
“
1.
Mr Figlan is not allowed to represent the applicant in the absence
of proof that
he is a union official (Shosholoza Workers
Union).
2.
The case is dismissed.”
The
effect of the arbitrator’s ruling was that the applicant’s
unfair dismissal dispute was dismissed without the merits
thereof
being ventilated. It is for this reason that the applicant is seeking
remittal of the matter to the second respondent to
be heard
de
novo
.
[2]
The review application was filed out of time and the applicant has
applied for condonation
thereof. Both the review and condonation
applications are opposed by the third respondent, the former employer
of the applicant.
Material
facts
[3]
The applicant was employed by the third respondent as a Butchery
Manager. She had
been in the employ of the third respondent since
2004.
[4]
On or about August 2015 the applicant was summoned to a disciplinary
hearing where
she had to answer to allegations of misconduct. In
essence, it was alleged that the applicant had reduced the price of
burger patties
without authorization and she had wrongfully priced
burger patties as braai grillers, and this had misled customers. The
applicant
was found guilty of misconduct and dismissed with effect
from 10 July 2015.
[5]
Unhappy with her dismissal, the applicant referred an unfair
dismissal dispute to
the Commission for Conciliation, Mediation and
Arbitration (CCMA) in terms of section 191(5) of the LRA. The dispute
was later
transferred to the first respondent for adjudication. The
arbitrator was duly appointed to arbitrate the dismissal dispute.
[6]
The applicant’s numerous defences to the misconduct allegations
set out in her
founding affidavit, including the alleged retaliation
by the Area Manager because of the sexual harassment complaint laid
by the
applicant against him, are not relevant to the determination
of this application. This is so because the merits of the dismissal
were not considered by the arbitrator.
[7]
The first sitting of arbitration was on 10 December 2015. The
applicant appeared in
person and the third respondent was represented
by Mr Coenie Du Toit, its Senior Case Manager (Mr Du Toit). Due to
time constraints
and to allow the applicant an opportunity to submit
documents the arbitration was postponed to 13 January 2016.
Apparently no evidence
was led at the first sitting on 10 December
2015.
[8]
On 13 January 2016 the applicant did not attend arbitration as she
was medically incapacitated.
Instead, a shop steward from SACCAWU
appeared on behalf of the applicant. Mr Du Toit, representing the
third respondent, questioned
the status of the SACCAWU shop steward
and produced documents which showed that the applicant belonged to a
union called JAMAFO.
The shopsteward insisted that the applicant was
a member of SACCAWU.
[9]
Due to the applicant’s illness, supported by a medical
certificate, the arbitrator
postponed the arbitration to 9 February
2016. The arbitrator also directed that at the next hearing SACCAWU
had to submit proof
that the applicant was its member and a copy of
SACCAWU’s constitution.
[10]
On 9 February 2016 the applicant attended the arbitration together
with Mr Xolani Figlan (Mr
Figlan) from Shosholoza Workers Union of
South Africa (SHOWUSA), as her representative. Mr Du Toit objected to
Mr Figlan representing
the applicant on the basis that at the last
hearing a shopsteward from SACCAWU represented the applicant and the
arbitrator directed
that at the next hearing proof of the applicant’s
union membership had to be produced.
[11]
Mr Figlan submitted documentary proof that the applicant was a member
of SHOWUSA. He also submitted
a letter indicating that he was an
official of SHOWUSA. The receipts proving the applicant’s
payment of subscriptions
to SHOWUSA covered the period of the
applicant’s alleged membership to SACCAWU. The letter about Mr
Figlan’s status
as an official of SHOWUSA was not an original
copy.
[12]
Applying Rule 25(2)(3) of the CCMA rules, the arbitrator sought to
verify the status of Mr Figlan
as an official of SHOWUSA. After
telephonic enquiries at the SHOWUSA’s head office and its
Johannesburg Branch it was established
that Mr Figlan was not an
official of SHOWUSA. On this basis the arbitrator ruled that Mr
Figlan was not allowed to represent the
applicant.
[13]
The arbitrator informed the applicant that the arbitration would
proceed as scheduled in the
absence of Mr Figlan. Mr Figlan indicated
that the applicant would not proceed with the arbitration in his
absence. The arbitrator
warned the applicant that if she were to walk
away her case would be dismissed. When the applicant was asked by the
arbitrator
if she was going to participate in the arbitration hearing
she replied that she was not going to participate in the absence of
Mr Figlan. The applicant then left together with Mr Figlan.
[14]
The applicant brought a rescission application in terms of section
144 of the LRA
[3]
. On 24 March
2016 the arbitrator issued a ruling stating that the second
respondent does not have jurisdiction as the rescission
application
does not fall within the ambit of section 144, and she advised the
applicant to refer the matter to this Court. For
the sake of
convenience, in this judgment I will refer to this ruling as the
rescission ruling, and the ruling which is the subject
of this review
application will be referred to as the impugned ruling.
[15]
On 27 March 2017 the applicant brought this review application
against the impugned ruling, together
with an application to condone
the late filing thereof.
Condonation
application
[16]
It is prudent that the condonation application be dealt with first.
This is so because the applicant’s
failure to overcome the
condonation hurdle will be fatal to the review application.
Extent
of delay
[17]
The applicant received the impugned ruling on 30 March 2016
[4]
.
In terms of section 145(1)(a) of the LRA the review application had
to be brought by no later than 11 May 2016 (six weeks from
30 March
2016). It has been suggested that six week period is also a
reasonable period within which review applications under section
158(1)(g) must be brought
[5]
.
This review application was filed on or about 27 March 2017, some ten
months out of time.
[18]
Mr
Mahlangu
,
who appeared for the applicant, readily conceded that the delay is
excessive. The concession was correctly made in the circumstances.
Explanation
for the delay
[19]
The applicant’s explanation for this inordinate delay is set
out at paragraphs 57 to 73
of her founding affidavit
[6]
.
This explanation has been aptly summarized in the third respondent’s
heads of argument as consisting of four parts, as follows:
“
31.1
the delay was caused in part by the Commissioner’s ill-advice
to pursue the rescission application;
31.2
despite approaching Shosholoza Union on ‘
numerous
occasions
’, its refusal to take the matter any further;
31.3
no progress being made in over a month by her initial legal
representatives; and
31.4
the attorneys alleged lack of capacity to finalise her review
application.”
[20]
During oral argument Mr Mahlangu was constrained to concede that
there is no reasonable explanation
for large portions of this delay.
For example, the applicant alleges that she was referred to Wits Law
Clinic at the end of June
2016. The first draft of the review
application was completed at the end of August 2016. The supervising
attorney Mr Dakalo Singo
(Mr Singo) made comments on the first draft
for the student counsellors working on the matter to attend to. The
second draft was
finalized by student counsellors and handed over to
Mr Singo on or about 16 September 2016. However, the review papers
were only
settled by Mr Singo in March 2017 and the review
application was filed on 27 March 2017. The delay from September 2016
to March
2017 is attributed mainly to Mr Singo’s hectic
workload and lack of capacity.
Prospects
of success
[21]
With reference to the grounds of review foreshadowed in the founding
affidavit
[7]
, the applicant
submitted that she has “
very
good prospects of success
”
in the review application.
[22]
The two grounds of review that can be distilled from the founding
affidavit are that in dismissing
the applicant’s dismissal
dispute the arbitrator failed to properly exercise her discretion in
terms section 138(5)(a) of
the LRA, and the arbitrator wrongly
advised the applicant to pursue a still-born rescission application.
The applicant submits
that the arbitrator ought to have proceeded
with the arbitration hearing in her absence and allowed the third
respondent an opportunity
to discharge its onus of proving that the
applicant’s dismissal was fair. The applicant further submits
that if the arbitration
had proceeded in her absence there was a
strong likelihood that the arbitrator would have found that her
dismissal was substantively
and procedurally unfair.
[23]
For reasons that will become apparent later in this judgment, it is
important to emphasize that
nothing is said in the founding and
supplementary affidavits to impugn the arbitrator’s decision to
disqualify Mr Figlan
from representing her at arbitration.
Law
on condonation applications
[24]
The seminal case on condonation applications is
Melane
v Santam Insurance Co Ltd
[8]
where the following authoritative statement was made:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, explanation therefor, the prospects of success,
and the importance of the case. Ordinarily the facts
are
interrelated: they are not individually decisive, for that would be a
piecemeal approach incompatible with a true discretion,
save of
course that if there are no prospects of success there would be no
point in granting condonation.
Any attempt
to formulate a rule of thumb would only serve to harden the arteries
of what should be a flexible discretion. What is
needed is
an objective
conspectus
of all the facts. Thus a slight delay and a good explanation may help
to compensate for prospects of success which are not strong.
Or the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. And the respondent's interest
in
finality must not be overlooked.”
[25]
Melane
has been followed; amplified and modified in a number of judgments
over the years, but remains the leading case in condonation
applications. In
Grootboom
v National Prosecuting Authority & Another
[9]
the Constitutional Court had the following to say:
“
[23]
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 noncompliance
with the rules or court’s directions. Of great importance, the
explanation must be reasonable
to excuse the fault.
…
[51]
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 be taken
into account to arrive at a conclusion as to what is in the interest
of justice.”
[26]
What is clear from
Melane
and
Grootboom
is that an excessive delay requires a good and acceptable
explanation. In the absence of a good and acceptable explanation for
an excessive delay, there may be no need to consider prospects of
success. Good prospects of success may cure lack of good explanation
for a short delay. Interests of justice is an overarching
consideration.
[27]
A further consideration in this case is that review applications are
inherently urgent applications
and expeditious resolution of labour
disputes is of cardinal importance
[10]
.
This requires stricter scrutiny of condonation applications in review
applications, particularly, in respect of dismissal cases.
The longer
the delay to launch a review application the less likely will the
Court exercise its discretion in favour of granting
condonation.
Evaluation
and analysis
[28]
In this case it is common cause that a delay of about ten months in
launching the review application
is excessive. Therefore, a good and
compelling explanation is indispensable. The explanation must be
reasonable to excuse the fault.
[29]
The applicant avers that one of the reasons for the delay is the
ill-conceived rescission application
she had to bring as per the
advice of the arbitrator and SHOWUSA
[11]
.
This averment is misplaced because the ruling in respect of the
rescission application was rendered on or about 24 March 2016
[12]
,
whereas the deadline for bringing the review application against the
impugned ruling was 11 May 2016
[13]
.
Although the impugned ruling is dated 19 February 2016, it was
received by the applicant on 30 March 2016, hence the six-week
period
is calculated from that date. It is obvious that the wrong turn taken
by the applicant by bringing a rescission application
did not
contribute to the delay.
[30]
Between April and end of May 2016 the applicant claims to have
approached SHOWUSA and Joshua
Apfel Attorneys (“JAA”) for
assistance. SHOWUSA did not provide any assistance and it informed
the applicant that it
could not take her matter any further. JAA
apparently worked on the applicant’s matter for about a month
but no progress
was made and the applicant terminated their mandate
at the end of May 2016. There are no confirmatory affidavits from
SHOWUSA and
JAA in this regard. There is also no indication of the
actual work done by JAA for a month and there is no elaboration as to
why
progress could not be made. The information provided by the
applicant is too scanty to excuse the fault.
[31]
The applicant was then referred to Wits Law Clinic at the end of June
2016
[14]
. There is no detailed
explanation as to what the applicant did to pursue this matter from
the end of May 2016 when she terminated
JAA’s mandate to the
end of June 2016 when she was referred to Wits Law Clinic.
[32]
In July 2016 Wits Law Clinic opened the file in the applicant’s
name and undertook to conduct
a merit assessment to determine whether
the applicant could be assisted. The applicant states that the
initial merit assessment
could not be done because of some essential
documents that were required. Such essential documents are not
identified in the applicant’s
affidavit and there is no
explanation why they were not provided to Wits Law Clinic at the
first instance. By this time (July 2016)
the filing of the review
application was already out of time by more than a month. This ought
to have been apparent to the Wits
Law Clinic. Urgency was called for.
[33]
On 27 July 2016 the applicant was informed that the Wits Law Clinic
would assist her with the
review application. As alluded to above,
the first draft of the review application was completed at the end of
August 2016, and
the second draft was completed by the week ending on
9 September 2016. Then it was up to Mr Singo to settle the review
papers,
but he only managed to do so in March 2017. This long delay
is mainly attributed to Mr Singo’s busy practice and lack of
capacity.
[34]
The above explanation for such an inordinate delay is woefully
inadequate to pardon the fault.
In respect of certain periods there
is no explanation as to what steps were taken by the applicant to
pursue the review application.
Where an explanation is offered, it
lacks particularity and specificity. There are no confirmatory
affidavits in respect of implicated
third parties and there is no
explanation as to why confirmatory affidavits could not be obtained.
[35]
Much of the delay is attributed to Wits Law Clinic’s excessive
workload and lack of capacity.
Put differently, the blame is shifted
to the applicant’s legal representative’s lack of
capacity to attend to her matter
timeously. In
Allround
Tooling (Pty) Ltd v NUMSA and others
[15]
the following was stated:
“
[10]
What Mr Tanner failed to do was to allocate time for the preparation
of the heads of argument. Instead
work on the heads of argument
competed – unsuccessfully – with the other demands of his
practice. The respondents’
interests were ranked below those of
other clients
. It is not an acceptable
explanation for delay that a practitioner is too busy. If the nature
or size of a practitioner’s
practice renders it impossible for
him to render a professional service and to comply with the
provisions of the Labour Appeal
Court’s rules he must not take
on the work
…” (Emphasis is
mine)
Although
the above passage was stated in the context of failure to timeously
submit heads of argument in a Labour Appeal Court matter,
there is no
reason why it should not be equally apposite in this case
[16]
.
[36]
Further, with regard to the negligence or lack of diligence on the
part of a litigant’s
legal representative, in
Saloojee
and another NNO v Minister of Community and Development
[17]
,
the
following was stated:
“
There
is a limit beyond which a litigant cannot escape the result of his
attorney’s lack of diligence or the insufficiency
of the
explanation tendered. To hold otherwise might have a disastrous
effect upon the observance of the rules of this court
…
In fact this court has lately been burdened with an undue and
increasing number of applications for condonation in which
the
failure to comply with the rules of this court was due to neglect on
the part of the attorney. The attorney, after all, is
the
representative the litigant has chosen for himself, and there is
little reason why, in regard to condonation of or failure
to comply
with a rule of court, the litigant should be absolved from the normal
consequences of such a relationship, no matter
what the circumstances
of the failure are…
If, as here,
the stage is reached where it must be become obvious also to a layman
that there is a protracted delay, he cannot sit
passively by, without
so much as directing any reminder or enquiry to his attorney …
and expect to be exonerated of all
blame; and if, as here, the
explanation offered to this court is patently insufficient, he cannot
be heard to claim that the insufficiency
should be overlooked merely
because he has left the matter entirely in the hands of his attorney.
If he relies upon the ineptitude
or remissness of his attorney, he
should at least explain that none of it is to be imputed to himself
…”
(My emphasis)
The
criticism levelled at the litigant in
Saloojee
is equally applicable to the applicant in this case. For example,
there is no indication that the applicant ever galvanized or
reminded
the Wits Law Clinic to attend to her matter between July 2016 (when
she submitted the additional unidentified documents)
and March 2017
(when the review papers were eventually finalized). There was
inactivity on the part of the applicant for more than
six months.
[37]
In conclusion, the applicant has failed to provide a reasonable and
acceptable explanation for
an unacceptably excessive delay. The
applicant’s failure to bring the review application within six
weeks or within a reasonable
period is unpardonable.
[38]
As it was pronounced in
Allround Tooling
above, the Wits Law Clinic’s hectic schedule and lack of
capacity is not an acceptable explanation for the excessive delay.
[39]
The free legal service that is provided by organisations and
institutions like Wits Law Clinic
(whom, for lack of a better word, I
will refer to as ‘Pro Bono service providers’) is highly
commendable and should
be encouraged as it enhances access to justice
for many indigent litigants who cannot afford legal fees. However,
the rules of
the game are the same for everyone. The Pro Bono service
providers are also equally bound by the rules of this Court and the
time
frames imposed by the LRA. Just like other practitioners who
charge for their legal services, the Pro Bono service providers must
not bite more than they can chew. They must accept only those cases
they can diligently and professionally attend to given
their
limited resources and capacity. It is up to the Pro Bono service
providers to demystify the myth that their service is not
up to the
required standard because it is free of charge.
Prospects
of success
[40]
Strictly speaking, having concluded that the applicant has failed to
provide a reasonable and
acceptable explanation for an excessive
delay, it is not necessary to consider the prospects of success.
However, for the sake
of completeness, I will proceed to consider the
prospects of success as I am of the view that the fate of this
application will
not change.
[41]
In this regard the relevant question is whether the applicant has
demonstrated that she has good
prospects of success in having the
arbitrator’s impugned ruling reviewed and set aside.
[42]
As alluded to above, the impugned ruling has two components, i.e.
disqualification of Mr Figlan
to represent the applicant because of
his failure to prove that he was an official of SHOWUSA, and the
dismissal of the applicant’s
dismissal dispute due to her
refusal to participate further in the arbitration after the
disqualification of Mr Figlan.
[43]
As I indicated at paragraph 24 above, the arbitrator’s decision
to disqualify Mr Figlan
from representing the applicant has not been
attacked at all
[18]
. The
decisions that are said to be reviewable are the dismissal of the
dismissal dispute and the arbitrator’s advice to the
applicant
to bring a rescission application
[19]
.
[44]
During oral argument there was an attempt by Mr
Mahlangu
to challenge the arbitrator’s decision to disqualify Mr Figlan.
When it was pointed out to him that in the applicant’s
papers
the decision to disqualify Mr Figlan has not been challenged, Mr
Mahlangu submitted that the applicant’s omission
has been cured
by the third respondent’s attempt to justify and defend the
disqualification of Mr Figlan in its answering
affidavit. I do not
agree.
[45]
It is trite that an applicant must make out its case in the founding
affidavit, including supplementary
affidavit filed in terms of Rule
7A(8)(a). In
Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau NO and Others
[20]
Zondo JP, as he then was, put it thus:
“
[26]
When you are a party to a dispute or when you were the arbitrator or
presiding officer in some
proceedings and one of the parties brings a
review application, you, of course, read the papers to understand
what the applicant’s
case is and to decide whether to oppose or
to consent to the order sought or to abide the decision of the court.
What you do will
depend partly upon the view you take of the
applicant’s case as disclosed in the papers. If, after reading
the applicant’s
papers, you conclude that there is absolutely
no case for you to answer in the light of the contentions or the
grounds of the applications
as disclosed in the founding affidavit
and you decide to abide the decision of the court, you would feel
legitimately aggrieved
if you subsequently learned that the award was
set aside by the court not on the grounds contained in the founding
affidavit but
on grounds that were advanced in oral argument which
were not foreshadowed in the founding affidavit and without you being
afforded
an opportunity to oppose the new case.
On
my understanding the rule that in motion proceedings the applicant
must make his case in his founding affidavit and that you
stand or
fall by your papers has not been abolished and still applies. It
served a very useful purpose in terms of fairness.”
(My emphasis)
And at
para [30] the following was said:
“
[30]…Accordingly,
a party which brings a review application is bound by the grounds of
review set out in his founding papers.
He cannot in oral argument
argue on the basis of different grounds of review except if such
ground can be said to be apparent from
the review application. In
this case the applicant does not pursue the grounds of review
contained in the founding affidavit but
seeks to argue the case on
the basis of grounds which are nowhere to be found in the review
application. The grounds it seeks to
pursue are not grounds of review
that can be said to be apparent from its review application. That
cannot be allowed.”
Advice
provided by the arbitrator
[46]
It is convenient to start with the applicant’s second ground of
review, i.e. an allegation
that the arbitrator committed misconduct
or gross irregularity by advising the applicant to bring a rescission
application in circumstances
where she ought to have foreseen that
such advice was wrong in law.
[47]
The so-called advice is not included in the arbitrator’s
impugned ruling. It is clear that
the applicant is referring to the
comments made by the arbitrator on 9 February 2016 when she verbally
communicated her ruling
to the applicant. There are only two comments
that I could find in the record which the applicant is probably
referring to. After
the arbitrator informed the applicant that if she
were to walk away from arbitration proceedings she would dismiss her
case, she
(the arbitrator) said the following:
“
COMMISSIONER:
But I am not sure maybe at some stage you would have an opportunity
to rescind if you find that there is proof that I was wrong.”
[21]
Later,
the arbitrator said the following:
“
COMMISSIONER:
You will get the Ruling you can, it can be taken on review but there
is easiest (inaudible) ways to apply for rescission first
because it
is quicker. When I say rescission so that it is done internally, but
you have got the right to take it to Labour Court
it takes long.”
[22]
[48]
It is clear from the two passages referred to above that the
applicant was given two options,
i.e. review application in this
Court or rescission application before the first respondent. It is
also clear that, although the
rescission was the preferred option,
the arbitrator was not certain about its appropriateness. It is
possible that the applicant
opted for rescission because it was also
suggested by her trade union, SHOWUSA
[23]
.
[49]
The applicant’s main complaint about the arbitrator’s
advice is that it prejudiced
her as it contributed to the delay in
filing the review application and as a result she had to bring the
condonation application
[24]
.
As indicated elsewhere, this complaint has no merit. The rescission
application did not contribute to the delay at all. The rescission
ruling was delivered on 24 March 2016. The impugned ruling was
received by the applicant on 30 March 2016. The period within which
the review application had to be brought is calculated from 30 March
2016, as prescribed by section 145(1)(a) of the LRA.
[50]
In any event, I do not think that a verbal advice
per
se
provided by an arbitrator to a party
is reviewable either under section 145 or 158(1)(g). An advice is not
a binding ruling or
directive. A party has a choice to accept or not
to accept gratuitous advice provided by an arbitrator. It is also not
part of
the duties or functions of arbitrators and commissioners to
provide legal advice to the parties during arbitration, unless it is
an advisory award issued in terms of section 135(3)(c) of the LRA.
Arbitrator’s
decision to dismiss applicant’s case
[51]
Section 138(5) of the LRA provides as follows:
“
(5)
If a party to the dispute fails to appear in person or to be
represented at the arbitration proceedings,
and
that party –
(a)
had
referred the dispute to the Commission, the commissioner
may
dismiss the matter; or
(b)
had not referred the dispute to the
Commission, the commissioner may –
(i)
continue with the arbitration proceedings
in the absence of that party; or
(ii)
adjourn the arbitration proceedings to a
later date.” (My emphasis)
[52]
It is clear that if a party that has referred a dispute to the CCMA
or bargaining council (like
the applicant in this case) does not
attend arbitration proceedings the arbitrator or commissioner has a
discretion to dismiss
the dispute without further ado. The options to
proceed with or adjourn arbitration proceedings to a later date are
available in
respect of the absence of a party who did not refer the
dispute to the CCMA or bargaining council.
[53]
Obviously, the discretion referred to in section 138(5) has to be
exercised judicially. It is
trite that the powers of a reviewing
court to interfere with an exercise of a discretion are
circumscribed. The reviewing court
can interfere only on narrow
grounds that the arbitrator has exercised his/her discretion
capriciously or upon wrong principle/approach
or with bias or without
reason. The reviewing court cannot interfere simply because it would
have come to a different decision.
[54]
The arbitrator cannot be faulted for relying on section 138(5) of the
LRA in dismissing the applicant’s
case after she walked out of
the arbitration proceedings. The applicant was forewarned by the
arbitrator that if she were to walk
out her case would be dismissed.
Despite this clear warning, the applicant walked out with Mr Figlan.
She did not even request
that the proceedings be postponed so that
she could secure another representative. The applicant’s
conduct manifested a clear
intention to abandon the arbitration
process or waive her right to participate in the arbitration
process.
[25]
She is the author
of her own misfortune.
[55]
The applicant’s technical submission that section 138(5) is not
applicable because she
was present at arbitration is not appealing to
me. The applicant’s mere physical presence at arbitration
proceedings up to
the point when she walked out is of no moment.
After walking out with her representative the applicant was no longer
appearing
in person or represented at the arbitration proceedings.
[56]
The applicant contends that after she walked out the arbitrator ought
to have proceeded with
the arbitration and allowed the third
respondent to discharge its onus of proving that her dismissal was
fair. In my view this
would have been a futile exercise. In the
absence of the applicant to rebut the third respondent’s case,
it is highly unlikely
that the arbitrator would have found in favour
of the applicant. In any event, the option to proceed with an
arbitration is open
in respect of the absence of a party that did not
refer the dispute to the CCMA or bargaining council (section
138(5)(b)).
[57]
All in all, I am not persuaded that the applicant has demonstrated
good prospects of success
in the review application. For this reason
also, the condonation application cannot succeed.
Conclusion
[58]
Since the applicant has failed to provide a reasonable and acceptable
explanation for excessive
delay, and the prospects of success in the
review are lacking, the late filing of the review application cannot
be condoned. It
follows that the review application has to be
dismissed.
[59]
In accordance with the principle of finality
[26]
,
after a year had lapsed without the applicant challenging the
arbitrator’s decision to dismiss her case, the third respondent
was entitled to assume that the matter had reached finality and moved
on with its life.
[60]
Finally, on the issue of costs, I am of the view that it is not in
accordance with requirements
of law and fairness to order the
applicant to pay costs.
[61]
In the result I make the following order:
Order
1.
The application to condone the late filing of the review application
is refused.
2.
Consequently, the review application is dismissed.
3.
There is no order as to costs.
___________________________________
S.B. Mgaga
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the applicant:
Mr S. Mahlangu of Wits Law Clinic.
For
the third respondent: Mr K. Naidoo of Kapdi Twala
Inc. t/a Dentons
[1]
Act 66 of 1995 as amended.
[2]
See
founding
affidavit para 11 which refers to both s145 and s158(1)(g) of the
LRA. Strictly speaking, a review of this nature (review
of a ruling,
as opposed to arbitration award) ought to be brought in terms of
s158(1)(g) of the LRA.
[3]
It appears that the rescission application was brought by the
applicant even before receiving the impugned ruling. I say so
because the applicant alleges that the impugned ruling was received
by her on or about 30 March 2016, but the rescission application
was
filed on 16 March 2016 and the rescission ruling was delivered on 24
March 2016 – see first page of rescission ruling
–
Pleadings page 53. This is possible because at the hearing on 9
February 2016 the applicant was verbally informed by
the arbitrator
that Mr Figlan was disqualified from representing her and that her
application would be dismissed if she were
to leave the proceedings
without participating in the arbitration.
[4]
Founding affidavit para 54 – Pleadings page 14.
[5]
See:
Weder
v Member of Executive Council for the Department of Health, Western
Cape
[2013] 1 BLLR 94
(LC) para [8]. However, this approach of fixing 6
week period for s158 review applications was criticized by the LAC
in
G4S
Secure Solutions (SA) (Pty) Ltd v Gungubele NO and others
[2017] 12 BLLR 1181
(LAC) paras [10] to [11]. In this case it
matters not whether a yardstick of ‘6 week period’ or
‘within a reasonable
period’ is used because a period of
more than 9 months is unreasonable and requires condonation
application.
[6]
Pleadings pages 15 to 19.
[7]
Paragraphs 81.1. and 81.2 of the founding affidavit –
Pleadings pages 20 to 21.
[8]
1962 (4) SA 531
(A) at 532 A-E
[9]
(
2014)
35 ILJ 121 (CC)
[10]
Practice
Manual, para 11.2.7: “A review application is by its nature an
urgent application.” See also
Queenstown
Fuel Distributors CC v Labuschagne NO & others
(2000) 21 ILJ 166 (LAC) at para 25 and
NUMSA
& Another v Hillside Aluminium
[2005] ZALC 25
;
[2005] 6 BLLR 601
(LAC) at para 12.
[11]
Founding affidavit paras 57-58 – Pleadings page 15.
[12]
Founding affidavit para 59 - Pleadings page 15.
[13]
Founding affidavit para 55 – Pleadings page 14.
[14]
Founding affidavit para 66 – Pleadings page 16
[15]
[1998] 8 BLLR 847 (LAC).
[16]
See
also:
SAMWU
obo Nobhuzana v South African Local Government and Others
(JR2640/2013) [2016] ZALCJHB 517 (15 December 2016) at paras 30 –
31.
[17]
1965 (2) SA 135 (A).
[18]
Even the applicant’s written heads of argument do not contain
any challenge to the arbitrator’s decision to disqualify
Mr
Figlan.
[19]
Founding affidavit paras 81 and 82 – Pleadings pages 20 to 22,
and Supplementary affidavit paras 6 to 11 – Pleadings
pages 82
to 84.
[20]
(2009)
30 ILJ 269 (LAC) at [26].
[21]
Record page 11 lines 4 to 5
[22]
Record page 13 lines 19 to 22
[23]
Founding affidavit paras 57 to 58 – Pleadings page 15.
[24]
Founding
affidavit para 81.2.3 – Pleadings page 22
[25]
See:
Lufuno
Mphaphuli and Associates (Pty) Ltd v Andrews and Another
2009 (6) BCLR 527
(CC) at para [80]
[26]
Van Wyk
v Unitas Hospital and Another (Open Democratic Advice Centre as
amicus curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at para
[31]
.