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[2020] ZALCJHB 188
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Arcelormittal South Africa Ltd v Thubakgale and Others (JR 759/18) [2020] ZALCJHB 188 (18 June 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JR 759/18
In
the matter between:
ARCELORMITTAL
SOUTH AFRICA LTD
Applicant
and
ABRAM
RANGELANI THUBAKGALE
First
Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION Second
Respondent
KHOKHORI
CATHERINE THEMA
N.O
Third Respondent
Enrolled:
10 June 2020
Delivered:
18 June 2020
In
view of the measures implemented as a result of the Covid-19
outbreak, this judgment was handed down electronically by circulation
to the parties' representatives by email. The date for hand-down is
deemed to be on 18 June 2020.
JUDGMENT
PRINSLOO,
J
Introduction
[1]
The Applicant filed an application to
review and set aside a ‘condonation and rescission ruling’
dated 20 March 2018
and issued under case number METS 5277. The Third
Respondent (arbitrator) refused to grant condonation for the late
filing of the
Applicant’s rescission application.
[2]
The First Respondent (Respondent) opposed
the application.
[3]
The matter was enrolled for hearing on 10
June 2020. In accordance with the provisions of the ‘Urgent
directive in respect
of access to the Labour Court’ dated 28
April 2020, which is applicable with effect from 4 May 2020 until the
end of the
July 2020 recess, the parties agreed that this matter be
disposed of without oral argument. I have considered the papers filed
as well as the written heads of argument submitted by the parties.
Material background
facts
[4]
The Respondent was employed by the
Applicant in February 2017 before he was dismissed in September 2017
for misconduct involving
theft or unauthorised possession of company
property.
[5]
The Respondent referred an unfair dismissal
dispute to the Second Respondent on 13 November 2017 wherein he
challenged the substantive
fairness of his dismissal. The referral
was accompanied by an application for condonation as the dispute was
referred out of time.
[6]
Condonation for the late referral of the
unfair dismissal dispute was granted and the Respondent was afforded
an opportunity to
refer his dispute for arbitration.
[7]
The matter was set down for arbitration on
25 January 2018 when the Applicant was absent and the Respondent was
represented by his
attorney. The arbitrator proceeded with the
arbitration in the absence of the Applicant.
[8]
The issue to be decided was whether the
Respondent’s dismissal was fair and after hearing the
Respondent’s version,
the arbitrator found his dismissal
substantively and procedurally unfair. The arbitrator ordered that
the Respondent be reinstated
retrospectively.
[9]
A copy of the arbitration award was served
on the Applicant on 30 January 2018. The Applicant applied for
rescission of the default
arbitration award. Such application was
filed late and was accompanied by an application for condonation.
[10]
The arbitrator issued a ruling dated 20
March 2018 wherein she refused to grant condonation for the late
filing of the Applicant’s
rescission application. In view of
her refusal to grant condonation, the arbitrator held that there was
no need to deal with the
rescission application.
[11]
The Applicant seeks the review and setting
aside of the aforesaid ruling.
The condonation
application
[12]
In order to assess the arbitrator’s
findings and the ruling that she ultimately issued, it is necessary
to consider the evidence
placed before her.
[13]
In the condonation application that served
before the arbitrator, the Applicant provided a background to the
alleged misconduct
that the Respondent was dismissed for, as well as
a detailed account of the disciplinary proceedings and the evidence
adduced.
[14]
The rescission application had to be filed
by 13 February 2018, but was only filed on 21 February 2018, thus 8
days late.
[15]
The Applicant’s explanation for the
late filing of the rescission application was as follows: Mr
Mahlangu, the Applicant’s
legal counsel, was informed about the
default award on 30 January 2018 but in the days following that, he
had been involved in
three different arbitrations in separate
locations. Those were 8 February 2018 in Newcastle, 15 February 2018
in Johannesburg and
16 February 2018 in Vereeniging. He considered
the default award on 15 February 2018 and instructed the Applicant’s
attorneys
to prepare the rescission application. The draft
application was sent to Mr Mahlangu the following day and it was
anticipated that
the application would be finalised by 19 February
2018.
[16]
On the prospects of success, the Applicant
submitted that it had good prospects of success in defending the
unfair dismissal dispute
and reference was made to the facts set out
in detail in the affidavit, dealing with the merits of the case.
[17]
On the issue of prejudice, the Applicant
submitted that the Respondent would not suffer prejudice due to the
late filing of the
rescission application as he could still present
his case at the arbitration. If condonation was not granted the
Applicant would
suffer severe prejudice because it would be precluded
from defending the unfair dismissal dispute, which is without merit.
[18]
The Applicant addressed the issues
regarding rescission of the default arbitration award in the same
application as it ultimately
sought the rescission of the default
arbitration award, but had to overcome the hurdle of condonation
being granted first.
The test for the grant
of condonation
[19]
The relevant legal principles to be applied
in an application for condonation, are well established.
[20]
The
court or relevant tribunal has a discretion, which must be exercised
judicially on a consideration of the facts of each case
and in
essence it is a matter of fairness to both sides
[1]
.
[21]
Condonation for delays in all labour law
litigation is not simply there for the taking. The starting point is
that an applicant
in an application for condonation seeks an
indulgence and bears the onus to show good cause.
[22]
In
Melane
v Sanlam Insurance Co Ltd
[2]
it was held that:
‘…
.
Among the facts usually relevant, are the degree of lateness, the
explanation therefore, the prospects of success and the importance
of
the case. Ordinarily these 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 will be no point in granting
condonation. What is needed is an objective conspectus of all the
facts.’
[23]
In
NUM
v Council for Mineral Technology
[3]
,
the LAC restated the position again follows:
‘
The
approach 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, the explanation therefor,
the
prospects of success and the importance of the case. These facts are
interrelated: they are not individually decisive. What
is needed is
an objective conspectus of all the facts. A slight delay and a good
explanation may help to compensate for prospects
of success which are
not strong. The importance of the issue and strong prospects of
success may tend to compensate for a
long delay.’
[24]
In
NUMSA
and Another v Voltex (Pty) Ltd t/a Electric Centre and Others
[4]
the
Court held that:
‘
As
was pointed out in the leading case of
Melane
v Santam Insurance Co Ltd
,
if there are no prospects of success there would of course never be a
point in granting condonation. However, the prospect of
success
is not decisive in circumstances where it is not apparent that there
are no prospects of success. If the applicant can
show that he has
some prospect of success and the delay is not excessive, then, within
the context of an application for condonation
in terms of s 191(2) of
the Act, condonation should not easily be refused. ‘
[25]
In
Ferris
and Another v FirstRand Bank Ltd and Another
[5]
the Constitutional Court held that:
‘
In
Bertie
Van Zyl
[6]
this Court held that lateness is not the only consideration in
determining whether condonation may be granted. It held further
that
the test for condonation is whether it is in the interests of justice
to grant it. As the interests-of-justice test is a requirement
for
condonation and granting leave to appeal, there is an overlap between
these enquiries. For both enquiries, an applicant’s
prospects
of success and the importance of the issue to be determined are
relevant factors.’
[26]
It is within this context that an
application for condonation stands to be determined.
The condonation ruling
[27]
The issue to be decided by the arbitrator
was whether condonation should be granted for the late filing of the
Applicant’s
rescission application and if condonation was
granted, whether the default award that was issued on 25 January 2018
should be rescinded.
[28]
In her analysis of the submissions and
arguments, the arbitrator recorded that the factors to be considered
in an application for
condonation are interrelated and that what is
needed, is an objective conspectus of all the facts.
[29]
The arbitrator found that the degree of
lateness was not excessive.
[30]
On the explanation for the delay, the
arbitrator found that the reasons provided are neither reasonable nor
justifiable and she
could not accept them. This is so because if Mr
Mahlangu was not entrusted with the obligation to draft the
rescission application,
but had to only instruct an attorney to do
that, there is no reason why the application was filed late. Mr
Mahlangu could have
instructed the attorneys immediately on 30
January 2018, when he became aware of the need to file the rescission
application.
[31]
On prospects of success, the arbitrator
found that the Applicant has good prospects of success in this
matter. She found that the
Respondent will be prejudiced as his only
witness moved to Limpopo.
[32]
The
arbitrator placed reliance on
NUMSA
and Another v Hillside Alluminium
[7]
(Hillside)
where
it was held that condonation is not for the asking and that there
should be an acceptable explanation tendered for each period
of the
delay. This requires a full, acceptable and reasonable explanation.
[33]
The arbitrator concluded that a full
explanation has to be set out for every period of the delay and an
unsatisfactory and unacceptable
explanation for any of the period of
the delay, will exclude the grant of condonation, no matter what the
prospects of success
are.
[34]
The arbitrator found that there was no good
cause and she refused the application for condonation and found that
there was no need
to deal with the rescission application.
The test on review
[35]
I
have to deal with the merits of the review application within the
context of the test that this Court must apply in deciding whether
the arbitrator's decision is reviewable. The test has been set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[8]
as whether
the
decision reached by the commissioner is one that a reasonable
decision maker could not reach.
The
Constitutional Court very clearly held that the arbitrator's
conclusion must fall within a range of decisions that a reasonable
decision maker could make.
[36]
The review test is a stringent and
conservative test of reasonableness.
The
Applicant has to show that the arbitrator arrived at an unreasonable
result.
[37]
In
Bestel
v Astral Operations Ltd and Others
[9]
the Labour Appeal Court (LAC) considered the limited scope possessed
by this Court to review an arbitration award and accepted
that an
arbitrator’s finding will be unreasonable if the finding is
unsupported by any evidence, if it is based on speculation
by the
arbitrator, if it is disconnected from the evidence, if it is
supported by evidence that is insufficiently reasonable to
justify
the decision or if it was made in ignorance of the evidence that was
not contradicted.
[38]
The
LAC in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[10]
affirmed the test to be applied in review proceedings and held that:
‘
In
short: A reviewing court must ascertain whether the
arbitrator considered the principal issue before him/her;
evaluated
the facts presented at the hearing and came to a conclusion
that is reasonable.’
[39]
The review Court must consider the totality
of the evidence and then decide whether the decision made by the
arbitrator is one that
a reasonable decision maker could make based
on the facts placed before him / her.
[40]
In
Parliament
of the Republic of South Africa v CCMA and Others
[11]
it
was held that:
‘
[13]
This Court accepts that when considering applications for
condonation, Commissioners enjoy a wide discretion
and the Courts
should be cautious when interfering with decision arrived at by
Commissioners in the light of that wide discretion.
[14]
The applicable test before the Court can interfere with a
Commissioner’s discretionary
decision is whether or not it can
be said that the discretion was exercised “capriciously, or
upon a wrong principle, or
in a biased manner, or for insubstantial
reasons. Thus, the test is whether the Commissioner committed a
misdirection, an irregularity,
or failed to exercise his or her
discretion, or exercised it improperly or unfairly.’
[41]
In
Cowley
v Anglo Platinum and Others
[12]
,
where it was held that;
‘
When
a
Commissioner
is endowed with a discretion this court will be very slow to
interfere with the exercise of that discretion. The commissioner’s
exercise of discretion would be upset on the review if the applicant
shows, inter alia, that the Commissioner committed a misdirection
or
irregularity, or that he or she acted capriciously, or on the wrong
principle or in bad faith or unfairly or that the exercise
seeing the
discretion the Commissioner reached a decision that a reasonable
decision-maker could not reach. If it is clear that
the commissioner
exercised such discretion judiciously and fairly after taking into
consideration all the relevant facts, this
court will not interfere
with the exercise of such discretion.’
[42]
The ultimate question is whether
holistically viewed, the decision taken by the arbitrator was
reasonable based on the evidence
placed before her. I have to
consider this question taking into account the evidence contained in
the condonation application and
opposition thereto that was placed
before the arbitrator, the ruling she had issued and the grounds for
review raised by the Applicant.
Grounds for review and
analysis
[43]
In its opposing affidavit, the Respondent
raised a point
in limine
regarding
the filing of the Applicant’s Rule 7A (8) of the Labour Court
Rules notice and the transcribed record.
[44]
The
point
in
limine
lacks
merit to the extent that I do not intend to spend any material
portion of this judgment dealing with it. It shows nothing
but a lack
of understanding of the application of the Rules of this Court, read
with the Practice Manual for the Labour Court
[13]
.
[45]
It is evident from her ruling that the
arbitrator was well aware of the fact that the Applicant had to show
good cause and that
the factors to be considered were interrelated
and that an objective conspectus of all the facts was required.
[46]
In considering whether or not to grant
condonation, the arbitrator had to consider the relevant factors,
thus the legal requirements
or the law, the facts placed before her
and exercise her discretion on an objective conspectus of the law,
applied to the facts.
[47]
The essence of the Applicant’s
grounds for review is that the arbitrator had not exercised her
discretion judicially and that
she had been influenced by the wrong
principles, which led her to adopt an unbalanced and inflexible
approach in which she did
not apply the interest of justice test.
Ultimately the arbitrator reached an unreasonable decision which
could not have been made
by an arbitrator properly considering the
relevant facts and applying the relevant principles.
[48]
In my view, there is merit in the
Applicant’s grounds for review.
[49]
It is evident that the arbitrator
considered four relevant factors and that she found that the degree
of lateness was not excessive
and that the Applicant has good
prospects of success. In considering the other two factors, she found
that the explanation for
the delay was not reasonable and justifiable
and that the Respondent would be prejudiced because his only witness
had moved to
Limpopo.
[50]
Essentially, the application for
condonation was dismissed based on the explanation for the delay and
the Respondent’s prejudice.
[51]
The relevant period for which the Applicant
had to tender an explanation is from 13 February 2018, when the
period within which
a rescission application had to be filed,
expired, and 21 February 2018, when the application was filed, thus
eight days. The Applicant
explained that Mr Mahlangu had different
arbitrations to attend to in Newcastle, Johannesburg and Vereeniging.
He did not instruct
the Applicant’s attorneys to prepare the
rescission application earlier due to his workload. The draft
application was sent
to Mr Mahlangu on 16 February 2018 and it was
anticipated that the application would be finalised by 19 February
2018, but he fell
sick and it was only signed on 21 February 2018.
[52]
Although the explanation may not be the
best or the most convincing, sight should not be lost of the fact
that the delay is minimal
and that the arbitrator found that the
Applicant has good prospects of success.
[53]
In
Grootboom
v National Prosecuting Authority and Another
[14]
the
Constitutional Court held that:
‘
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.’ (My
emphasis)
[54]
The
arbitrator in relying on
High
Tech Transformers (Pty) Ltd v Lombard (High Tech)
[15]
and
Hillside
to
find that the Applicant’s explanation was not acceptable and
rejecting it because there are days between 8 and 15 February
2018
that were not accounted for, misdirected herself.
[55]
If
she had proper regard to the facts of
High
Tech
[16]
,
she
should have known that it is a case where the Court was faced with a
rescission application where there was no application for
condonation
filed. The facts before the arbitrator were patently different and
the application of the
dictum
in
High
Tech
incorrect.
The arbitrator’s reliance on this authority constituted a
material error.
[56]
Furthermore,
if she had regard to the facts and principles set out in
Hillside,
she
should have known that
Hillside
involved
a case where a statement of case was filed one year after the
applicant’s dismissal and many periods, some to the
extent of
months, were not explained. Once again, the facts before the
arbitrator were patently different as the principles set
out in
Hillside,
clearly
related to a lengthy delay.
In
casu,
the
arbitrator found that the delay was not excessive. In
Hillside
[17]
the
Court held that:
‘
The
court has a discretion to be exercised judicially upon a
consideration of all the facts, and essentially it is a matter of
fairness to both sides. Ordinarily the considerations, which are
taken into account, are seen as interrelated. No single consideration
is individually decisive.
Where,
as in this case, one is dealing with a lengthy delay, the applicant
for condonation is obliged to give a full and extensive
account of
the delay to assist the court determine whether the explanation for
it is reasonable or not.
The explanation must be sufficient to enable the court to determine
how the delay came about and to allow an assessment of the
applicant’s motives and conduct for the purpose of making a
finding of reasonableness.’
(My
emphasis)
[57]
The arbitrator’s reliance on the
aforesaid authorities was misplaced and her application of the
principles showed a lack of
understanding of the law as it applied to
the condonation application which she had to decide.
[58]
Having found that the delay was not
excessive and that the Applicant had good prospects of success, it
was unreasonable to refuse
condonation, even on the basis that the
explanation was not acceptable and the Respondent’s witness had
moved to Limpopo.
[59]
The arbitrator dismally failed to exercise
her discretion judicially upon a consideration of all the facts. She
had no regard for
the interest of justice and she made no assessment
of whether it would be in the interest of justice to grant or refuse
condonation.
She came to a conclusion that is not only unreasonable,
but that is also at odds with the applicable authorities and
established
principles.
[60]
This is a case where the arbitrator, on an
objective conspectus of the facts, should have granted condonation
for the late filing
of the Applicant’s rescission application.
[61]
The arbitrator made reference to the
primary purpose of the LRA namely the expeditious resolution of
labour disputes, especially
dismissal disputes. The arbitrator’s
refusal of condonation in circumstances where it should have been
granted, and her failure
to deal with the rescission application,
undermined this very objective of the LRA.
[62]
In summary:
On
a consideration of all the facts before the arbitrator at the time,
it is evident that the most reasonable outcome upon a consideration
of the overall interests of justice would have been to grant
condonation. In exercising her discretion to refuse condonation, the
arbitrator committed a misdirection of such a nature that her
discretion was exercised not only improperly, unfairly and
unreasonably,
but also upon wrong principles and for insubstantial
reasons.
[63]
In
the circumstances, it follows that the condonation ruling ought to be
set aside,
as it does not
pass muster considering the test this Court has to apply on review.
Relief
[64]
This leaves the issue of relief.
[65]
The Applicant seeks for the condonation
ruling to be reviewed and set aside and to be substituted with a
ruling that condonation
is granted. I am inclined to grant this
relief.
[66]
I
am satisfied that upon the material that was placed before the
arbitrator, this Court is in a position to substitute that ruling.
No
purpose would be served by remitting the condonation application back
to the Second Respondent for reconsideration.
It
is also in the interest of justice to determine the condonation
application finally and not to order a re-hearing thereof as
any
further delay in this matter would undermine one of the key objects
of the LRA namely expeditious dispute resolution.
[67]
The arbitrator did not at all consider the
merits of the rescission application and it is not for this Court,
sitting as a review
Court, to consider the rescission application in
circumstances where it was not first considered by the tribunal that
had to consider
it in the first place.
Costs
[68]
This Court has a wide discretion in respect
of costs.
[69]
This is a matter where ultimately the
arbitrator got it wrong and the Respondent was entitled to defend a
ruling issued in his favour
by opposing the application. In my view,
considering the facts placed before me, the interest of justice will
be best served by
making no order as to cost.
[70]
In the premises, I make the following
order:
Order
1.
The
condonation
ruling dated 20 March 2018 and issued under case number METS 5277
is
reviewed and set aside;
2.
The condonation ruling is substituted with
the following:
‘
The
late filing of the rescission application is condoned.’
3.
The Second Respondent is ordered to enroll
the rescission application for hearing before a commissioner other
than the Third Respondent;
4.
There is no order as to costs.
______________
Connie Prinsloo
Judge of the Labour Court
of South Africa
Representatives:
Applicant:
Cliffe Dekker Hofmeyr Inc Attorneys
First
Respondent:
NUMSA
[1]
‘
Civil
Procedure in the Superior Court, Harms at B27.6.
[2]
1962
(4) SA 531
(A) at 532 C - F.
[3]
[1999]
3 BLLR 209
(LAC) at 211-213.
[4]
(2000)
21 ILJ 1173 (LC).
[5]
2014
(3) SA 39
(CC) at para 10.
[6]
See:
Bertie
Van Zyl (Pty) Ltd and Another v Minister for Safety and Security and
Others
[2009] ZACC 11
;
2010 (2) SA 181
(CC);
2009 (10) BCLR 978
(CC)
(Bertie Van Zyl) at para 14. See also
Grootboom
v National Prosecuting Authority and Another
[2013] ZACC 37
at para 22;
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at para
20; and
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para
3.
[7]
[2005]
6 BLLR 601 (LC).
[8]
2007
28 ILJ 2405 (CC) at para 110.
[9]
[2011]
2 BLLR 129
(LAC) at para 18.
[10]
(2014)
35 ILJ 943 (LAC) at para 16
[11]
Unreported
judgment
(C646/16)
[2018] ZALCCT 12 (24 April 2018).
[12]
JR 2219/2007;
[2016]
JOL 35884
(LC)
at para 21.
[13]
April
2013.
[14]
(2014)
35 ILJ 121 (CC),
2014
(2) SA 68 (CC) at para 50.
[15]
[2012]
JOL 28631 (LC).
[16]
Id
[17]
Supra
n
7 at para 6.