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[2020] ZALCJHB 106
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POPCRU obo Nkuna v Safety and Security Sectoral Bargaining Council and Others (JR933/17) [2020] ZALCJHB 106 (22 June 2020)
The
Labour Court of South Africa
(Held at Johannesburg)
Judgment
Not reportable
CASE NO: JR 933/17
In
the matter between:
POPCRU
obo NR
NKUNA
Applicant
and
AFETY
AND SECURITH SECTORAL
BARGAINING
COUNCIL
First Respondent
K
MASEGE
N.O
Second Respondent
MINISTER
OF
POLICE
Third Respondent
Date
enrolled: 10 June 2020 (By agreement, decided in Chambers)
Date
of judgment: 22 June 2020. Judgment distributed by email at
12:00
JUDGMENT
VAN
NIEKERK J
[1]
The applicant seeks to review and set aside an arbitration award
issued by the second
respondent (the arbitrator) on 25 November 2016.
In his award, the arbitrator held that the third respondent had
followed the correct
procedure in applying Agreement 2/2002 and
refusing to pay the applicant an acting allowance.
[2]
The present application was filed on 15 June 2017. The applicant
states that the award
was provided to him only on 9 February 2017.
The six-week period within which the application ought to have been
filed expired
on 23 March 2017.
[3]
The general principles to be applied are well-established.
Condonation is not there
merely for the asking, nor are applications
for condonation a mere formality (see
NUMSA v Hillside Aluminium
[2005] ZALC 25
;
[2005] 6 BLLR 601
(LC);
Derrick Grootboom v National Prosecuting
Authority & another
[2014] 1 BLLR (CC)). 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.
[4]
This court is required to exercise a discretion, having regard 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.
[5]
In this court, that formulation, which has its roots in
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A), has long been qualified by the rule that where there is an
inordinate delay that is not satisfactorily explained, the
applicant’s
prospects of success are immaterial. In
National
Union of Mineworkers v Council for Mineral Technology
[1999]
3 BLLR 209
(LAC) the LAC said the following:
…
without a reasonable and
acceptable explanation for the delay, the prospects of success are
immaterial, and without prospects of
success, no matter how good the
explanation for the delay, an application for condonation should be
refused.
[6]
This principle was reaffirmed in
Collett v Commission for
Conciliation, Mediation and Arbitration
[2014] 6 BLLR 523
(LAC),
a unanimous judgement of the LAC, Musi AJA held as follows:
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 532C-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 delay, an application
for condonation should be
refused.’
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.
[7]
The applicant for condonation must offer an explanation for the full
length of the
delay (see
Independent Municipal and Allied Trade
Union obo Zungu v SA Local Government Bargaining Council and others
(2010) 31
ILJ
1413 (LC)). In
eThekwini Municipality v
Ingonyama Trust
2013 (5) BCLR 497
(CC), the Constitutional Court
said the following:
In a case where the delay is not a
short one, the explanation given must not only be satisfactory but
must also cover the entire
period of the delay. Thus in
Van Wyk v
Unitas Hospital and another (Open Democratic Advice Centre as Amicus
Curiae),
this Court said in this regard:
An applicant for condonation must give
a full explanation for the delay. In addition, the explanation must
cover the entire period
of the delay. And, what is more, the
explanation given must be reasonable. The explanation given by the
applicant is hort of these
requirements. Her explanation for the
inordinate delay is superficial and unconvincing.
[8]
Where 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 a representative’s
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.
What this requires is that the
applicant follow up to ensure that his or her instructions are being
executed, or to take steps
to file a review application on his or her
own behalf. There are pro forma documents available to applicants for
this purpose.
In short, the applicant in such circumstances must
satisfy the court that none of the delay is to be imputed to him or
herself
(see
Mashishi v Mdladla
(2018) 39
ILJ
167
(LC)).
[9]
In review applications, there is a further consideration that must
necessarily be taken
into account, consequent on the publication of
this court’s practice manual and recent amendments to the LRA.
In
Makuse v CCMA & others
[2015] 12 BLLR 1216
(LC), Myburgh AJ alluded to the measures
instituted to address systemic delays, particularly in review
applications. The practice
manual, introduced in April 2013, records
that a review application is ‘by its very nature an urgent
application’.
The practice manual also requires that all of the
necessary papers in any review application be filed within 12 months
of the date
of the launch of the application. As the court observed,
the corrective steps taken by this court and the legislature (in the
form
of the 2014 amendments to the LRA) the statutory imperative that
labour disputes must be effectively and thus expeditiously resolved.
What this requires is a strict scrutiny of condonation applications
and an approach that affords due regard to the statutory purpose
of
expeditious dispute resolution.
[10]
As I have observed, the delay in the present instance is not
insignificant. The explanation proffered
by the applicant is one that
seeks to ascribe blame to a union official. He states that he
requested a Mr Mofokeng to file a review
application and that it was
necessary to obtain permission from the union’s head office. An
application for authorisation
to review the arbitrator’s award
was sent on 17 February 2017. The applicant spoke to Mofokeng
periodically, and relied on
the union to further his interests. The
applicant’s present attorneys of record received instructions
on 24 April 2017. The
attorney struggled to get hold of the applicant
to arrange a consultation. Mofokeng was not reachable since he had
been admitted
to hospital, and only returned to work on 6 June 2017.
The applicant’s attorney was only able to get hold of Mofokeng
on
7 June 2017 and a
meeting was arranged for the morning of 8 June 2017. The applicant
states that he had at all times been under the impression that the
matter was under control. It was only when he consulted with
his
attorney was he advised that the application had been filed out of
time. It warrants mention that the medical certificate attached
to
the papers makes no reference to Mofokeng’s hospitalisation,
nor any period during which he was admitted to hospital.
In so far as
the prospects of success are concerned, the applicant states simply
that he has good prospects of success that are
apparent from the
founding affidavit.
[11]
The explanation for the delay in filing the present application is
incomplete and unacceptable.
There is simply no explanation for the
delay of more than two months between receipt of the award, and the
instruction from the
trade union to the applicant’s attorneys
of record. By the time that those instructions were received, on 24
April 2017,
the application was already more than a month out of
time. Even if I accept that Mofokeng was indisposed during the course
of May
2017, the delay in filing the application, where the
applicant’s advisers must have appreciated the need for
urgency, is
not satisfactorily explained.
[12]
The applicant’s prospects of success are by no means apparent
from the founding affidavit.
The issue that the arbitrator was
required to decide was whether the applicant was entitled to payment
of an acting allowance in
terms of a collective agreement. The
agreement provides for the payment of acting allowances in
circumstances where the appointment
is made by a major general or
higher rank in a vacant post at provincial or national level. In the
present instance, the arbitrator
recorded that the criteria for
payment of an acting allowance clearly stipulates the procedures to
be followed in posts where the
acting allowance would be paid. The
fact that the agreement stipulated that acting allowances could be
paid to employees were justified,
did not mean that by virtue of
being appointed in an acting position, all employees qualify for
payment. It could thus not be said
that the applicant had an
expectation that he would be paid an acting allowance. In particular,
the criteria for the appointment
of persons to acting positions in
the payment of acting allowances required certain stipulated
conditions to be met. These included
the existence of a vacant post
at provincial or national level, funded by the organisational
development and for which financial
authority has been obtained. The
applicant had not submitted any evidence to show that post was
confirmed as vacant and funded
or that any financial authority was
obtained for his appointment. The arbitrator further considered that
the applicant had acted
in the position for a ‘considerably
long period’, in circumstances where the collective agreement
was clear that employees
could not act in a position for a period
longer than six months without approval. Finally, the arbitrator held
that there was no
evidence before him to establish that a divisional
provisional commissioner had appointed the applicant to act in the
post, and
that the extended period was properly approved. For these
reasons, the arbitrator concluded that he was not persuaded that the
applicant was entitled to an acting allowance and in particular, that
the third respondent had breached the terms of the collective
agreement by refusing to pay the allowance.
[13]
The test to be applied in a review proceeding is whether the
arbitrator’s award falls within
a band of decisions to which
reasonable decision-makers could come on the available evidence. The
test is one that firmly draws
a line between appeals and reviews and
which limits this court’s capacity to interfere to truly
exceptional cases. In the
present instance, the grounds for review
attack the arbitrator’s decision on the basis of the
correctness. Arbitrators are
allowed to be incorrect. There is no
case made out in the founding papers that seeks to apply the
reasonableness threshold or which
identifies any material
irregularity that had the result that the outcome of the proceeding
under review is unreasonable. In other
words, the founding papers
simply fail to make out a case to the effect that the arbitrator’s
award is so unreasonable that
no reasonable person could reach the
decision that he did on the material that served before him. In
consequence, the applicant’s
prospects of success appear to be
limited, if they exist at all. They are certainly not so overwhelming
that they trump a poor
explanation for a significant delay.
[14]
For the above reasons, in my view, the applicant has failed to make
out a case for condonation
of the late filing of the review
application, and the review application stands to be dismissed.
I make the following
order:
1.
Condonation for the
late filing of the review application is refused.
2.
The review application
is dismissed.
André
van Niekerk
Judge
of the Labour Court
APPEARANCES:
For
the applicant:
M Mashaba of Mashaba Attorneys
For
the Third Respondent:
H Maponya of the State Attorney