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[2020] ZALCJHB 17
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Mabuza v South Africal Local Government Bargaining Council and Others (JR421/2018) [2020] ZALCJHB 17 (5 February 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR421/2018
In
the matter between:
NDODA
DOCTOR
MABUZA
Applicant
and
SOUTH AFRICAL LOCAL
GOVERNMENT
First Respondent
BARGAINING
COUNCIL
FAITH
GUMEDE,
N.O.
Second Respondent
MBOMBELA
LOCAL MUNICIPALITY
Third Respondent
Heard:
8 January 2020
Delivered:
05 February 2020
Summary:
Application for the review and setting aside of a ruling rendered by
the Second Respondent acting under auspices
of the First Respondent.
Principles
– condonation and review not met. Application dismissed
with no order as to costs
JUDGMENT
RAMDAW,
AJ
Introduction:
[1]
This is an application by the Applicant against the First, Second and
Third Respondents in terms of which the Applicant seeks an order,
inter alia
in the following terms:
‘
1.1
That the Rescission Ruling rendered by the Second Respondent’s
acting under the auspices of the First Respondent on 23
February
2018, Ref. MPO 121203 be reviewed and set aside.
1.2
That the First Respondent is directed to set the matter down for
arbitration within
30 days of the
date of a court
order.
1.3
That the costs of this application be paid by the Respondents
1.4
Further or alternative relief.’
[2]
The Application was dated 26 March 2018 and was served and filed on 9
April 2018. The same is opposed by the Third Respondent.
[3]
The rescission ruling by the Second Respondent was dated 23 February
2018.
The same dealt with a ruling issued on10 April 2013, some
five years later, when the Applicant failed to attend the
arbitration
proceedings set down on 8 April 2013.The same was opposed
by the Third Respondent who filed an answering affidavit.
[4]
The Applicant filed an application for condonation and conceded that
his
application is four years, five months and twenty four days late.
He complained of his union representative passing away and SAMWU
not
assigning another person to assist him. Furthermore, that the First
Respondent did not have an office in the province where
he lived and
that the nearest office was in Pretoria, some 300 km away which
attributed to the delay in bringing this application.
He also stated
that he did not have the financial resources to engage the services
of an attorney up and until his family assisted
him to do so.
[5]
The Third Respondent in its answering affidavit stated that the
Applicant
failed to substantiate his application by asserting that he
has a good defence and that he did not explain the long delay of over
four years in bringing his rescission application. Furthermore, that
proper notice of the set down of the arbitration was served
on the
Applicant per fax 086 762 5221 on 8 March 2013. In other
words, the Third Respondent challenges the excessive
delay and the
failure by the Applicant to address the issue of prospects of
success.
[6]
The Second Respondent per a written ruling dismissed the rescission
application
and
stated “
I find that the Applicant
has not shown “good cause
”
for this application to be rescinded or the late referral to be
condoned. She refused to rescind her dismissal ruling of
10 April
2013 and made no order as to costs. The Applicant seeks to review and
set aside this ruling on the grounds as set out
in the founding
affidavit.
[7]
Both parties filed elaborate heads of argument. However, the Third
Respondent’s
counsel failed to attend court to present his
heads of argument.
[8]
The test to be followed for the rescission of an arbitration award or
ruling has been clearly set out in numerous decisions of this Court
and the Constitutional Court.
[9]
The Applicant has to show that there are reviewable defects on the
aforesaid
ruling and that this Court should review and set aside the
same.
[10]
In an application for rescission the reasons for the delay or
lateness and as well
as the prospects of success need to be clearly
set out. In considering such an application, the Court will exercise
its discretion
having taken into account the degree of lateness, the
explanation thereof, the prospects of success and the importance of
the case.
These factors are interrelated and they are not
individually decisive. Furthermore, one can give the best reasons for
the delay
but without fair prospects of success, the application for
condonation will fail and vice-versa.
[11]
There has been a considerable delay by the Applicant in bringing his
application
for rescission, which is some four and a half years late.
On or about 15 May 2013 the Applicant’s union representative
from
SAMWU indicated that he was bringing an application for
rescission which he never did. On or about 6 November 2017 the
Applicant
was assisted by his current attorneys to file the
application for rescission. The Third Respondent opposed this
application.
[12]
The Court in
Melane
v Santam Insurance Company Ltd
[1]
sets
out very clearly and crisply the requirements for a condonation
application. The Supreme Court of Appeal (SCA) in
Colyn
v TIiger Food Institutions Ltd, T/A Meadow Feed Mills Cape
[2]
endorses
this approach. The Applicant has to show good cause by:
12.1
Giving a reasonable explanation for or
cause for, the delay and explaining each step of the delay.
12.2
By showing the prospects of success;
12.3
Dealing with the importance of this case as
well as the prejudice should the application be dismissed;
12.4
Dealing with the effect of the delay in the administration of
justice.
[13]
In the unreported case of
Giwusa
obo members v Zibo Containers and Others
[3]
per Gush J, the court held that although the existence of the
prospects of success in favour of the party seeking condonation is
not decisive, it is an important factor in favour of granting
condonation.
[14]
This Court enjoys a discretion to be exercised judicially upon a
consideration of
all facts and in essence it is a matter of fairness
to both sides.
[15]
However, before me there is an application to review and set aside
the ruling made
by the Second Respondent who found “
that
the Applicant has not shown a “good cause” for this
application”.
[16]
The Applicant raises the issue of inconsistency in the application of
the disciplinary
rules but concedes that his actions could have
resulted in a loss or potential prejudice of R2 000,000.00 (Two
Million Rands) to
the Third Respondent.
[17]
The Second Respondent found that the Applicant did not have any
prospect of success
in this matter.
[18]
The Second Respondent correctly cited the test set out by the Labour
Appeal Court
(LAC) in
Shoprite
Checkers (Pty) Ltd v CCMA and others
[4]
which
held that “
good
cause”
also includes a valid reason for rescission.
[19]
It is quite clear that the delay of four years, five months and
twenty four days
is grossly excessive and inordinate. In other words,
a substantive application has to be made out for the condonation of
this delay
given the fact that the Applicant around 15 May 2013 was
already made aware of the adverse ruling made and the need to apply
for
the rescission of the same. He clearly failed to provide a
reasonable and/or acceptable explanation for this excessive delay.
[19]
Any other reasonable decision maker hearing this application for
condonation and
rescission would have also found that the Applicant
failed to provide a reasonable and/or acceptable explanation for the
delay.
Even if one finds in his favour that he has explained the long
delay of 53 months, he has to show good prospects of success in the
form of a
bona fide
case showing that his dismissal was unfair.
[20]
The Applicant worked in the vehicle registration unit of the Third
Respondent and
is obviously computer literate. Given access to the
internet he could have easily ascertained the status of his matter,
the steps
he is expected to take to bring a rescission application
and to have the same set down for hearing timeously. The excuse of
the
SALGBC offices being 300 km away is not an acceptable excuse nor
is tardiness or negligence on the part of a union official a good
reason or explanation for any delay.
[21]
The spirit of the LRA and the decisions of the Labour Courts duly
endorsed by the
Constitutional Court, all promote the speedy and
expeditious resolution of labour disputes. To expect the Third
Respondent to prepare
for and deal with a dismissal it made some
seven years later is grossly unfair. The effect of the delay in
the administration
of justice cannot be ignored as the Third
Respondent raised the same in the pleadings before me. The Applicant
himself is to be
blamed for the predicament he finds himself in and
the lack of financial resources is also no reasonable excuse or
explanation
given our efficient system of legal aid and
pro
bono
which he could have invoked.
[22]
This application fails to meet the grounds for review of arbitration
awards as stipulated
in Section 145 of the LRA and the various
applicable case law.
[23]
I cannot find that the ruling made by the Second Respondent acting
under the auspices
of the First Respondent is a reviewable ruling and
should be set aside granting the Applicant the relief sought in his
Notice of
Motion.
[24]
As far as the issue of costs is concerned, I am not persuaded that in
the circumstances an award of costs is justified.
[25]
In the circumstances, I make the following
order:
Order
1.
The Application is dismissed.
2.
3.
There is no order as to costs.
__________________
R.
Ramdaw
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Mr Dimakatso Mashebo of Dima Mashebo Attorneys
For
the Third Respondent:No appearance
[1]
1962 (4)
SA
531
(A)
[2]
172/2002, 2003 (2)
ALL
SA SCA
(31/3/03)
[3]
JS 877/15 delivered on 8 April 2016
[4]
[
2007]
28
ILJ
2246 (LAC).