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[2020] ZALCJHB 65
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Tladi v CCMA (JR837/15) [2020] ZALCJHB 65 (13 March 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR837/15
In
the matter between:
NOHAYAZE
ANGELINA TLADI
Applicant
And
COMMISSION
FOR CONCILIATION,
First
Respondent
MEDIATION
AND ARBITRATION
COMMISSIONER:
TSILISO SHASHA
N.O.
Second
Respondent
LOCAL
GOVERNMENT SECTOR EDUCATION Third
Respondent
TRAINING
AUTHORITY
Heard:
20 February 2020
Delivered:
13 March 2020
JUDGMENT
NIEUWOUDT,
AJ
Introduction
[1]
There are
three opposed applications before Court; the applicant applies for
reinstatement of her review application, the third
respondent applies
for the dismissal of the review application in terms of Rule 11 and
the applicant applies that the award under
case number FSBF3528/14,
handed down by the second respondent on 12 March 2015 be reviewed and
set aside.
[2]
The parties
were in agreement that, on the facts of this matter, the application
in terms of Rule 11 would have to fail if the application
for
reinstatement succeeded and that the converse would be true if the
application for reinstatement failed.
[3]
The Court
enquired from both parties whether they only wished to argue the
reinstatement application and the Rule 11 application,
or whether
they wished to argue the review application too. Both parties
indicated that they wished to argue the full matter.
[4]
It is
necessary to record that the documentary record of the arbitration
proceedings was not available to the Court. Mr Masihleho
who appeared
on behalf of the applicant assured the Court from the bar that the
complete record had been filed, and the Court accepted
this
assurance. In order to avoid further delays in the matter, the Court
suggested that the parties argue the matter on the basis
that they
would refer the Court to any extracts from the record on which they
wished to rely, on the basis that the Court would
read those extracts
later. As it turned out, no reference was made to the documentary
record and the complication need not delay
the decision in this
matter.
Background
[5]
The applicant
was employed by the third respondent as its regional manager for its
Free State and Northern Cape regions. She was
dismissed on 22 July
2014 for alleged acts of misconduct after a disciplinary hearing that
ran over a number of months. For purposes
of this judgment it
suffices to record that, on the face of it, the misconduct appears to
be serious.
[6]
She referred a
dispute to the first respondent and this dispute was arbitrated over
a number of months. On 12 March 2015 the second
respondent found that
the dismissal of the applicant was substantively and procedurally
fair. She received the arbitration award
on 19 March 2015. The review
application was filed on 12 May 2015. It was slightly late and the
applicant applied for condonation.
This application was not argued by
either of the parties and the Court grants the condonation.
[7]
The first
respondent filed the record of the arbitration proceedings with the
registrar on 18 June 2015. It is not clear when the
registrar
informed the parties of this fact, but both parties accepted that it
must have been within a few days. The transcript
of the arbitration
proceedings was completed on 15 April 2016. It is this period of
approximately 10 months which was the focus
of the argument before
Court as far as the period of the delay in progressing the matter is
concerned.
[8]
There were
further periods of delay:
8.1
The notice in
terms of Rule 7A (6) was served on 7 July 2016 and filed on 19 July
2016.
8.2
The
supplementary affidavit was only deposed to on 30 September 2016.
8.3
The notice in
terms of Rule 7A (8) was also dated 30 September 2016.
[9]
However, the application for reinstatement was served on 7 July 2016
and filed on
11 July 2016.
Application
for reinstatement
[10]
The applicant had failed to comply with the provisions of paragraph
11.2.2
[1]
of the Practice Manual
[2]
by failing to file the record of the proceedings within 60 days and
she was thus, in terms of paragraph 11.2.3,
[3]
deemed to have withdrawn the application.
[11]
The consequences of the deeming provision have been dealt with a
number of times and is settled
law. In
Ralo
v Transnet Port Terminals and Others
[4]
the Court found that a review application would be deemed to have
been withdrawn as a consequence of the fact that the applicant
had
not filed the record within the prescribed 60-day period and stated
the following:
‘…
the
word ‘deemed’ means ‘considered’ or
‘regarded’ and is used to denote that ‘something
is
a fact regardless of the objective truth of the matter
[5]
...’
The
Court further held that the applicant may apply for condonation of
the late filing of the record. Thus, the default may be cured
by a
condonation application.
[6]
[12]
In
Colett
v Commission for Conciliation, Mediation and Arbitration and
Others
[7]
the Labour Appeal Court dealt with the remedies that an applicant had
when a matter had been archived. It held that the principles
that
were normally applicable to condonation applications would apply when
considering an application for retrieval.
[13]
In
Grootboom
v National Prosecuting Authority and Another
[8]
,
the Constitutional Court in a majority decision held that:
‘…
the
standard for considering an application for condonation is the
interest 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.’
[9]
[14]
In
Colett
[10]
the
LAC added the following:
‘
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 532 C-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 the delay, an application
for
condonation should be refused.’’
And
further
[11]
:
‘
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.’
[15]
It has to be noted that the decision in
Grootboom
does not mean that all the elements of the test are applicable in
every case. Ordinarily, the adjudicator would consider the period
of
the delay, the explanation for the delay and the prospects of
success. Both parties focused on these factors and the Court shall
consider them.
[16]
Mr
Masihleho submitted that the fact that the application for
reinstatement was
bona
fide
should
play a role in assessing whether good cause had been shown. He
referred the Court to
Samuels
v Old Mutual Bank
[12]
in
this regard. The LAC did not do away with the three factors;
bona
fides
is
an element of assessing prospects of success. The
LAC
in
Nature’s
Choice Products (Pty) Ltd v Food and Allied Workers Union and
Others
[13]
held
that:
‘
It
has also been held in respect of rule 27 of the High Court Rules,
that the applicant should satisfy the court on oath that it
has a
bona fide defence. In this regard, it has been held that the least
that the applicant must show is that his or her defence
is not
patently unfounded and that it is based on facts which, if proved,
would constitute a defence.’
[17]
It also serves to be mentioned that in that matter the applicant had
gone to great lengths to
try and secure the co-operation from the
CCMA in order to finalise the record.
[18]
Mr Shangisa, in turn, relied on
Matsha
& others v Public Health & Social Development Sectoral
Bargaining Council & others
[14]
and in particular to its referral to the following passage in
Ferreira
v Die Burger
[15]
‘
I
am sympathetic to the fact that the applicant may have a case but,
were we to grant this application, this court would subvert
a crucial
principle in matters which deal with personal relationships, namely
labour relations, that these disputes have to be
dealt with
expeditiously and finalized as quickly as possible. Where in a case
such as this, there has been so flagrant a violation
of the rules,
then, as Myburgh JP correctly decided, a lack of any explanation at
all shrugs off other considerations.’
[19]
It is trite law that labour disputes ought to be resolved
expeditiously and this is a factor
that the practice manual gives
effect to. However, the facts in that matter are also somewhat
different; the appellant had failed
to file the complete record on
appeal for a period of two years and had not responded to repeated
requests from the respondent’s
attorneys to do so. In fact, the
appellant’s attorneys were ordered to pay the costs of the
matter.
Period
of the Delay
[20]
For the purpose of this judgment, the Court will, as the parties had
done in argument, focus
on the delay of approximately 10 months. The
delay is long given the fact that the record is required to be filed
in 60 days.
Explanation
for the Delay
[21]
There is no direct explanation for the lapse of 10 months. The
applicant explains the delay after
the record had been transcribed on
15 April 2016 but does not do so for the period before that date. The
further delay was caused
by two factors, her counsel declined the
brief to continue to act in the matter and she had difficulty in
paying her legal expenses
due to the fact that she was unemployed.
[22]
Mr Masihleho urged the Court to find that her unemployment had
commenced from the date that she
had been dismissed and that her
difficulties in having the record prepared was caused by this fact.
In the absence of direct evidence
on the issue, the Court has to
decide whether there are sufficient facts before it to draw an
inference and if so, whether this
inference is the most plausible or
natural inference to be drawn from the proven facts.
[16]
[23]
It would seem that the applicant had never abandoned her application.
In her founding affidavit,
she annexed the invoice from her then
counsel, for an amount of R112 000 for preparing the review
application and condonation application.
This invoice is dated 18 May
2015. It is probable that her attorneys had also rendered an account
for their work. This is quite
a large amount of money for an
individual to pay. In the light of this, the most plausible or
natural inference to be drawn is
that a lack of funds delayed the
progression of the delivery of the record.
[24]
The bulk of the employees who bring applications to this Court are
unemployed. This fact cannot
excuse an indefinite delay in the
finalisation of labour disputes. As already stated, that has to be
done expeditiously.
[25]
The Court accordingly finds that there is an explanation for the
delay and that, although it
may not be a good one, it is not so poor
that it precludes the Court from considering the prospects of success
of the applicant.
Prospects
of Success
[26]
The Court is in the unusual position that it has heard full argument
on the merits of the matter.
It would serve no purpose to deal with
this aspect twice. Suffice to say that, as will appear from
later in this judgment,
the applicant has very good prospects of
success.
Conclusion
[27]
The period of the delay is long, the explanation for the delay is not
particularly good but the
prospects of success are very good.
Accordingly, the application for reinstatement of the review ought to
be granted.
Review
[28]
The applicant has relied on a number of grounds of review to show
that the decision of the second
respondent that her dismissal was
procedurally and substantively unfair, was one that a reasonable
decision-maker could not reach.
She also relied on the fact that the
second respondent had improperly interfered in her cross examination,
that he had advised
her to withdraw the dispute and that he had said
that she was going to lose the case. The second respondent when so
far as to call
her husband in this regard.
[29]
Due to the Court’s conclusion on the last ground, it is not
necessary to deal with the
other grounds in any degree of detail. It
is the Court’s view is that there is not much merit in them:
28.1
The delay in
instituting the charges against the applicant was caused, and is
explained, by the fact that the third respondent was
dysfunctional to
the extent that an administrator had to be appointed to try and
salvage it.
28.2
The final
written warning that the erstwhile CEO of the third respondent had
imposed on the applicant was questionable on at least
two grounds,
namely that it referred to an incorrect date and that it was copied
to a person who was not in the employ of the third
respondent on the
date that it was issued.
28.3
The fact that
the superiors of the applicant did not take issue with the
appointment of her niece and her domestic to the employment
of the
third respondent is, to say the least, startling and does not excuse
or mitigate her misconduct.
28.4
The fact that
her superiors rubberstamped her failure to comply with the
procurement policy of the third respondent also does not
excuse her
misconduct.
28.5
Mr Masihleho
referred the Court to a number of extracts in the transcript in
support of his submission that the second respondent
had unduly
interfered in the cross examination of the chair of the disciplinary
hearing by the applicant. The Court has perused
these extracts and
they do not support this ground of review. To the contrary, they show
that the second respondent was at pains
to try to assist the
applicant in confining her cross examination to relevant questions.
Misconduct
[30]
The applicant contended that the second respondent had misconducted
himself in relation to his
duties as an arbitrator by putting
pressure on her to withdraw the dispute and telling her that she
would lose the case.
[31]
These allegations are clearly and unambiguously made in the founding
affidavit. The third respondent
baldly denied them.
The parties accepted that any disputes of fact stood to be resolved
by the application of the
Plascon
Evans
rule. Thus, the allegations
must stand.
[32]
In
Kasipersad
v Commission for Conciliation, Mediation & Arbitration &
others
[17]
the
Court dealt with an arbitrator giving advice to a party and held as
follows:
‘
Even
if a commissioner is invited by a party to give advice, such an
invitation should be resisted. A commissioner has to be even
handed
in dealing with the parties. If she gives advice to one party, she
would have to do likewise for the other party. That would
create
conflicts of interest for the commissioner. A commissioner who puts
herself in such a situation would have great difficulty
in acting
with honesty, integrity and impartiality. Ethically, it is therefore
untenable.’
[33]
This
dictum
was quoted with approval in
Premier
Foods (Pty) Ltd (Nelspruit) v Commission for Conciliation, Mediation
& Arbitration & others
[18]
. One of the issues in that matter was that the arbitrator had told a
party that it would lose if the arbitration proceeded. The
Court
held
[19]
that, in so acting,
the arbitrator had placed himself in a position where his
impartiality and integrity could be called into question.
It does not
matter that the arbitrator acted with the best intentions in the
world.
[34]
The Court was not referred to any authority that contradicts the
position set out above. Applying
the test, the Court finds that the
arbitrator committed misconduct in relation to his duties as an
arbitrator and that this ground
of review must succeed.
[35]
The effect of this finding is that the matter ought to be remitted to
the first respondent for
a hearing
de
novo
by a commissioner other than the
second respondent.
Costs
[36]
The parties were
ad idem
that this was not a matter where costs should be awarded.
[37]
I make the following order:
Order:
1.
The
application to retrieve the review application is granted.
2.
The
application to dismiss the review application is dismissed.
3.
The award
under case number FSBF3528/14 handed down by the second respondent on
12 March 2015 is reviewed and set aside.
4.
The dispute is
referred back to the first respondent for a hearing
de
novo
by a
commissioner other than the second respondent.
5.
There is no
order as to costs.
________________________
H.
Nieuwoudt
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Peter T. Masihleho
Instructed
by: Phatshoanehenny Attorneys
For
the third Respondent: S.L. Shangisa
Instructed
by: Kgokong Nameng Tumagole Inc
[1]
11.2.2
For the purposes of Rule 7A (6), records must be filed within 60
days of the date on which the applicant is advised by
the registrar
that the record has been received.
[2]
Effective
April 2013.
[3]
11.2.3
If the applicant fails to file a record within the prescribed
period, the applicant will be deemed to have withdrawn the
application, unless…
[4]
(2015)
36 ILJ 2653 (LC).
[5]
Id
fn 5 at para 10.
[6]
Id
fn 5 at para 11.
[7]
(2014
18 ILJ 367 (LAC).
[8]
(2014)
35 ILJ 121 (CC)
[9]
Ibid
at para 22.
[10]
Id
fn 11 at para 38.
[11]
at
para 39.
[12]
(2017)
38 ILJ 1790 (LAC)
[13]
(2014)
35 ILJ 1512 (LAC) at para 8.
[14]
(2019)
40 ILJ 2565 (LC)
[15]
(2008)
29 ILJ 1704 (LAC) at para 8
[16]
See
Govan
v Skidmore
1952 (1) SA 732
(N) at 733H - 734B
[17]
(2003)
24 ILJ 178 (LC) at para 27
[18]
(2017)
38 ILJ 658 (LC)
[19]
At
para 30