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[2020] ZALCJHB 44
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South African Municipal Workers Union obo Marageni v City of Johannesburg Metropolitan Council and Others (JR196/2016) [2020] ZALCJHB 44 (18 February 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 196/2016
In the matter between:
SOUTH AFRICAN
MUNICIPAL WORKERS UNION
obo TAKALANI GEORGE
MARAGENI
Applicants
and
CITY OF JOHANNESBURG
METROPOLITAN COUNCIL First Respondent
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING COUNCIL
Second
Respondent
G.M RABYANA
N.O
Third
Respondent
Heard: 10
October 2019
Delivered:
18 February 2020
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The applicants seek an order reviewing and setting aside
the
arbitration award dated 1 December 2015 issued by the
third respondent (Commissioner). In the award, the Commissioner
had
found that the dismissal of Mr Marageni, a member SAMWU on
4 August 2014 by the first respondent (COJ) was
substantively
and procedurally fair.
[2]
Marageni was employed by the COJ with effect from August 1990
and
was at the time of his dismissal, employed as Human Resources
Manager. The allegations leading to Marageni’s dismissal were
that he had fraudulently assisted another employee (Mr Leslie Magaro)
in claiming pension benefits in circumstances where Magaro
had not
retired and had remained in the Council’s service.
[3]
It was COJ’s case that Magoro was initially employed on a fixed
term contract, which was then converted into permanent contract of
employment as a result of a bargaining agreement reached between
COJ
and SAMWU. It was further alleged that Marageni was present in all
the meetings where these changes were discussed, and was
therefore
aware that Magaro’s contract was converted into a permanent
contract. Marageni had however according to COJ, engineered
a change
on the pension fund withdrawal forms to reflect that the reason for
termination of services of Magoro was due to ‘resignation’
rather than that the fixed term contract had expired. It was further
contended that throughout his engagements with the pension
fund,
Marageni had submitted the forms referring to Magaro’s
resignation; had telephonically contacted the Pension Fund in
that
regard contrary to procedures; and had failed to furnish any
explanation as to the reason Magoro was entitled to his
pension
when he was still employed.
[4]
The Commissioner’s findings were essentially that Marageni was
not
a reliable witness, was evasive and his evidence was full of
contradictions. The Commissioner noted that Marageni was fully aware
of the conversion of Magaro’s contract of employment, and that
there was a pattern followed by Marageni in making telephone
calls to
the Pension Fund, up to a point when payments were made. This showed
that he had a personal interest in the claim.
[5]
The Commissioner also noted that once the HR personnel had submitted
all
the necessary documentation to the Pension Fund, there was no
further obligation on Marageni to follow up on the matter, as that
was now a private and confidential matter between the Pension Fund
and the concerned employee. To the extent that the offence was
proven, the Commissioner had concluded that because it was serious,
this had destroyed the trust relationship, and that the dismissal
was
fair. The Commissioner had also dismissed Marageni’s claims
that the dismissal was procedurally unfair.
[6]
The arbitration award having been issued on 1 December 2015,
the review application was launched on 3 March 2016. It was
however submitted on behalf of the applicants that a copy
of the
arbitration award was only received on 26 January 2016
after enquiries were made with South African Local Government
Bargaining Council (SALGBC), and that the application was accordingly
filed within the prescribed time limits. The initial review
application was launched by Thulisile P Malimela Attorneys (erstwhile
attorneys) on behalf of the applicants.
[7]
The SALGBC filed the record of proceedings on or about
16 March 2016.
The erstwhile attorneys filed and served a
transcribed record of proceedings on 19 April 2016. The
applicant’s
current attorneys (Qhali Attorneys) came on record
on 21 September 2017, and had filed and served the
supplementary affidavit
on 26 September 2017. The answering
affidavit was filed and served on 13 June 2018 in which
various points
in limine were raised.
[8]
The points
in limine
raised pertained to the lack of authority
on the part of the applicants’ attorneys of record to act on
their behalf; the
non-joinder of the SALGBC as an institution where
the dispute was heard; problems with the incomplete record of
arbitration proceedings;
and the introduction of new evidence by the
applicants in the review proceedings.
The
non-joinder of SALGBC:
[9]
Rule 7A (1) and (2) of the Rules of this Court provide that a party
desiring
to review a decision or proceedings of a body or person
performing a reviewable function justiciable by the court must
deliver
a notice of motion to the person or body and to all other
affected parties. Furthermore, the notice of motion must call upon
the
person or body to show cause why the decision or proceedings
should not be reviewed and corrected or set aside. Obviously this
requires that a body such as the SALGBC under whose auspices the
impugned award was issued should be cited as an interested party.
[10]
The Notice of Motion and the founding affidavit as served and filed
by the applicant’s
erstwhile attorneys of record had cited
SALGBC as the second respondent. It was only in the supplementary
affidavit that SALGBC
was not cited. Despite this omission being
brought to the applicants’ attention in the answering
affidavit, no attempt was
made whatsoever to correct it. I agree that
the supplementary affidavit is indeed defective, but not to the
extent that it can
cause the dismissal of this application.
Condonation:
[11]
A more
serious concern however is the late filing of the supplementary
affidavit. The applicants filed and served an application
for
condonation for the late filing of a notice in terms of Rule 7A(8) of
the Rules of this Court
[1]
,
which the COJ had opposed. The transcribed record of proceedings
having been filed and served on
19 April 2016,
the notice in terms of Rule 7A(8) was only complied with on
26 September 2017, some 17 months
outside of the prescribed
time periods.
[12]
The
principles applicable to applications for condonation are well-known.
Condonation generally is not there merely for the asking,
nor are
applications for condonation a mere formality
[2]
.
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. In considering whether or not to grant an
indulgence, this court is required to exercise a discretion, having
regard to a variety of factors including but not limited 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. In the end, the decision to grant or refuse condonation
must be in the interests of justice
[3]
.
[13]
In
SA
Post Office Ltd v Commission for Conciliation, Mediation &
Arbitration & others
[4]
however
,
it was
held that where a dispute pertains to an individual
dismissal, this court must be cautious before exercising
a discretion
in favour of the indulgence sought, because there is an imperative
placed upon the speedy and expeditious resolution
of such disputes.
[14]
Other than the above, it is further trite that an application for
condonation ought to
be made as soon as a defaulting party becomes
aware of the need to do so. In this case, the application for
condonation was filed
and delivered on
on
5 April 2018, some 23 months since the review application
was launched, and some seven months since the filing of the
supplementary affidavit.
[15]
In seeking condonation, Marageni conceded that the
delay was indeed excessive. He nonetheless blamed the applicants’
erstwhile
attorneys of record for failing to file a notice in terms
of Rule 7A(8) after the Registrar of the Court had made the record
available
on 19 April 2016. He further averred that he had
diligently followed up on the progress of his case with the attorneys
and was assured that the matter was receiving attention through case
management.
[16]
In the end, Marageni conceded that he had no other
explanation to proffer other than to blame the allege negligence of
the applicants’
erstwhile attorneys. He further averred that he
only became aware of the delays when the new attorneys of record took
over the
matter on 11 September 2017.
[17]
Clearly
there are difficulties with the explanation proffered by Marageni for
the delay in filing the Rule 7A(8) notice, more particularly
to the
extent that his sole explanation is the alleged negligence of the
applicants’ erstwhile attorneys of record. In
Mashishi
v Mdladla and Others
[5]
,
Van Niekerk J held that;
‘
When 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.’
[18]
The
Labour Appeal Court in
Superb
Meat Supplies CC v Maritz
[6]
has long restated that;
‘
It has never been
the law that invariably the litigant will be excused if the blame
lies with the attorney. To hold otherwise might
have a disastrous
effect upon the observance of the rules of this court and set a
dangerous precedent. It would invite or encourage
laxity on the part
of practitioners. The courts have emphasized that the attorney, after
all, is the representative whom the litigant
has chosen for himself,
and there is little reason why, in regard to condonation of a 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.’
[19]
As it was correctly pointed out on behalf of COJ,
despite Marageni alleging that he had diligently followed up the
matter with the
applicants’ erstwhile attorneys, there are no
details provided as to when and how those follow ups were made, and
with whom
in particular at the erstwhile attorneys of record, for
over a period spanning seventeen months
[20]
The period
of delay in this case is indeed excessive in the extreme as conceded
on behalf of the applicants. Other than furnishing
no explanation as
to the reason the condonation application could not be filed
immediately after September 2017 subsequent
to the supplementary
affidavit having been filed, the explanation proffered for the entire
delay is wholly inadequate, and in the
words of
Moila
[7]
,
amounts to no explanation at all. No attempt was made by the
applicants to explain any of the periods of the delay. A simple
averment that Marageni ‘diligently followed up on the progress
of the matter’ is clearly meaningless without specifics.
SAMWU
despite assisting Marageni in this review application has also made
no attempt whatsoever, to proffer any explanation as
to the reason
the matter was not attended to timeously or what it had done to
ensure that the time frames were complied with. Ultimately,
there is
no reason why it cannot be concluded that t
he
delay should be imputed to Marageni and SAMWU.
[21]
The confirmatory affidavit deposed to by Monyane Qhali of the
applicants’ current
attorneys of record is equally of no
assistance, as it does no shed any light as to the delays before they
took over the matter.
There is clearly no basis for the alleged
negligence of the erstwhile attorneys to be condoned, and it cannot
be correct as submitted
on behalf of the applicants, that there was
no prejudice to COJ as a consequence of the delays. The dismissal of
Marageni took
place in August 2014, and clearly the COJ is
entitled to have the dispute timeously resolved.
[22]
In
circumstances such as in this case, where the delay is excessive in
the extreme, and the explanation furnished in that regard
is
manifestly inadequate or amounts to no explanation at all, it has
been held that without a reasonable and acceptable explanation
for
the delay, the prospects of success are immaterial
[8]
.
Even though t
he
interests of justice ought to be determined with reference to all
relevant factors as stated in
Grootboom
[9]
and
confirmed in
Steenkamp
[10]
,
this
case represents those instances where there is clear justification to
leave out other factors to be considered in such applications.
[23]
Other than the question of the unexplained
excessive delay, there is a further issue of the incomplete record
which COJ had raised,
and which the applicants have not attended to
since the transcribed record was filed in April 2016. To the
extent that the
transcribed record is incomplete, there would in any
event, have been no basis to consider the review application.
[24]
For the above reasons, it follows that both the applications for
condonation and the application
to review the Commissioner’s
award ought to fail. I have further had regard to the requirements of
law and fairness, and
I am of the view that a costs order as sought
by COJ is not appropriate given the circumstances of this case.
[25]
Accordingly, the following order is made;
Order:
1. The application for
condonation for the late filing of the Rule 7A(8) Notice in terms of
the Rules of this Court is dismissed.
2. The review application
is dismissed.
3. There is no order
as to costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants: Adv.
C.M Sihlali, instructed by Qhali
Attorneys
For
the First Respondent: Adv M Beckenstrater, instructed by Moodie
& Robertson
[1]
Which
provides:
(
8)
The applicant must
within 10 days after the registrar has made the record
available
either-
(a)
by delivery of a notice and accompanying affidavit, amend,
add to or vary the terms of the notice of motion and supplement the
supporting affidavit; or
(b)
deliver a notice that the applicant stands by its notice of motion.
[2]
See
NUMSA
v Hillside Aluminium
[2005] ZALC 25
;
[2005]
6 BLLR 601
(LC);
Derrick
Grootboom v National Prosecuting Authority & another
[2013] ZACC 37
;
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC) at para
20 where it was held;
“
[i]t
is axiomatic that condoning a party's non-compliance with the rules
of court or directions is an indulgence. The court seized
with the
matter has a discretion whether to grant condonation.”
[3]
Steenkamp
and Others v Edcon Limited
CCT29/18)
[2019] ZACC 17
;
2019 (7) BCLR 826
(CC); (2019) 40 ILJ 1731
(CC);
[2019] 11 BLLR 1189
(CC) at paragraphs [36] – [37],
where it was held;
“
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.”
And,
“
All
factors should therefore be taken into account when assessing
whether it is in the interests of justice to grant or refuse
condonation.”
[4]
(2011) 32 ILJ 2442 (LAC) para 20
[5]
[2018] 7 BLLR 693
(LC); (2018) 39 ILJ 1607 (LC) at para 10
[6]
(2004) 25 ILJ 96 (LAC). See also
Saloojee
v Minister of Community Development
1964
(2) SA 135 (AD)
[7]
Moila v
Shai NO and Others
(JA 26/04)
[2007] ZALAC 1
;
[2007] 5 BLLR 432
(LAC), at para [34]
where it was held;
‘
I
do not have the slightest hesitation in concluding that this is a
case where the period of delay is excessive and the appellant’s
purported explanation for the delay is no explanation at all. I
accept that the case is very important to the appellant. However,
the weight to be attached to this factor is too limited to count for
anything where the period of delay is as excessive as is
the case in
this matter and the explanation advanced is no explanation at all.
If ever there was a case in which one can conclude
that good cause
has not been shown for condonation without even considering the
prospects of success, then this is it. Where,
in an application for
condonation, the delay is excessive and no explanation has been
given for that delay or an “
explanation”
has
been given but such “
explanation”
amounts to
no explanation at all, I do not think that it is necessary to
consider the prospects of success.’
[8]
NUM
v Council for Mineral Technology
[1999]
3 BLLR 209
(LAC) at para 10
[9]
Fn2
[10]
Fn
3